An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA14-84
NORTH CAROLINA COURT OF APPEALS
Filed: 5 September 2014
STATE OF NORTH CAROLINA
v. Johnston County
Nos. 11 CRS 51511;
12 CRS 002080
CHARLES EDWARD DUBLIN, JR.
Appeal by defendant from judgments entered 27 June 2013 by
Judge Gale M. Adams in Johnston County Superior Court. Heard in
the Court of Appeals 14 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Ryan C. Zellar, for the State.
John R. Mills, for defendant-appellant.
HUNTER, JR., Robert N., Judge.
Charles Edward Dublin, Jr. (“Defendant”) appeals from his
convictions for one count of possessing with intent to sell or
deliver marijuana, one count of selling marijuana, and one count
of conspiring to sell marijuana. Defendant contends that the
trial court erred by refusing to instruct the jury on the
lesser-included offense of possession of marijuana, declining to
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instruct the jury that the State must prove that Defendant
received remuneration for transferring less than 5 grams of
marijuana to be guilty of possession with intent to sell or
deliver marijuana, and preventing defense counsel from asserting
a similar argument about the need for remuneration in closing
argument. Defendant further contends that the trial court
committed plain error by allowing testimony regarding a co-
conspirator’s guilty plea to the offenses with which Defendant
was also charged. Defendant asserts that the cumulative effect
of these errors was to prejudice his trial and asks this Court
to reverse his convictions and remand for a new trial. After
careful review, we find no prejudicial error.
I. Facts & Procedural History
On 16 July 2012, Defendant was indicted in Johnston County
Superior Court for one count of possessing with intent to
manufacture, sell, or deliver marijuana, one count of selling
marijuana, and one count of conspiring to sell marijuana in
violation of N.C. Gen. Stat. § 90-95(a)(1) and § 90-98 (2013).
From 25 June through 27 June 2013, Defendant was tried on these
charges in Johnston County Superior Court. The evidence
presented at trial tended to show the following:
On 1 February 2011, Defendant was in an apartment in Selma,
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North Carolina, when Mr. Antwon Sanders and Ms. Elaine Earp came
downstairs and approached him. Mr. Sanders told Defendant that
Ms. Earp wanted to purchase some marijuana. Defendant asked how
much marijuana she wanted and was told that she wanted to
purchase $10 worth of the drug. Defendant then went to a nearby
table with a digital scale on top, weighed a small amount of
marijuana on the scale, placed the drug in a bag, and handed the
bag to Ms. Earp. According to trial testimony by Ms. Earp, Mr.
Sanders – who had previously been given $10 for the drugs by Ms.
Earp while upstairs – then handed the $10 to Defendant.
Unbeknownst to either Defendant or Mr. Sanders, Ms. Earp
was working as a confidential informant for the Selma Police
Department at the time of this transaction. On the afternoon of
1 February 2011, Ms. Earp was working with Detective Scott
Richardson (“Detective Richardson”) on an operation targeting
Mr. Sanders. Her mission was to purchase 0.1 grams of crack
cocaine and a $10 bag of marijuana from Mr. Sanders, to whom she
had been sent to purchase drugs on previous occasions.
On the afternoon at issue, Ms. Earp and her husband went to
the apartment where she had previously met Mr. Sanders with $30
for the purchase of drugs and a “button cam” video surveillance
device concealed in her pocketbook. She met Mr. Sanders in the
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apartment and accompanied him upstairs while her husband waited
in the car outside. While upstairs, Ms. Earp informed Mr.
Sanders that she wanted to purchase crack cocaine. When he told
her that she would have to wait to purchase the crack cocaine,
she asked for marijuana instead. Mr. Sanders informed her that
marijuana was available and brought her downstairs to Defendant
from whom she purchased the marijuana as described.
After receiving the marijuana from Defendant, Ms. Earp left
the residence and drove with her husband to meet members of the
Selma Police Department, including Detective Richardson. She
gave them the marijuana she purchased from Defendant and Mr.
Sanders, which the State Bureau of Investigation Crime
Laboratory eventually determined was 1.7 grams of marijuana.
She also gave the officers the video recording she made of the
transaction and provided a statement. She was paid $75 for her
participation in the operation.
The surveillance video produced by the camera hidden in Ms.
Earp’s pocketbook recorded her time spent with Mr. Sanders
upstairs, including when she gave him $10 for the purchase of
marijuana. The camera did not, however, record Defendant giving
Ms. Earp the marijuana or receiving the $10 from Mr. Sanders.
The only evidence produced at trial of Defendant’s transfer of
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the marijuana to Ms. Earp and his receipt of the $10 was Ms.
Earp’s testimony. Defendant did not offer any evidence at
trial.
During the trial, the prosecution asked Detective
Richardson whether Mr. Sanders, who was present in the
courtroom, was charged in the same case as the one confronting
Defendant. Detective Richardson responded that he had been
charged and stated that he believed Mr. Sanders pleaded guilty
to the charges. Defense counsel did not object to this exchange
during trial.
After hearing all of the foregoing evidence, the jury
convicted Defendant of all counts. Defendant subsequently
entered a plea of guilty to the status of a habitual felon. The
trial court sentenced Defendant to between 66 and 89 months of
active imprisonment and issued a criminal bill of costs.
Defendant gave timely notice of appeal.
II. Jurisdiction
Defendant’s appeal from the superior court’s final judgment
lies of right to this Court pursuant to N.C. Gen. Stat. § 7A-
27(b) and § 15A-1444(a) (2013).
III. Analysis
Defendant’s appeal presents five questions for this Court’s
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review: (1) whether the trial court was required to instruct the
jury on the lesser-included offense of possession of marijuana
when the State presented positive evidence on all the elements
of the charged offense and there was no contradictory evidence
presented by either party; (2) whether the trial court erred by
preventing defense counsel from asserting to the jury during
closing argument that N.C. Gen. Stat. § 90-95(b)(2) creates a
“pot exception” to N.C. Gen. Stat. § 90-95(a)(1) for transfers
of less than 5 grams of marijuana; (3) whether the trial court
was required to instruct the jury that, under N.C. Gen. Stat. §
90-95(b)(2), a person may not be found guilty of violating N.C.
Gen. Stat. § 90-95(a)(1) for delivering less than 5 grams of
marijuana without remuneration; (4) whether the trial court
committed plain error by allowing testimony regarding a co-
conspirator’s guilty plea during Defendant’s trial; and (5)
whether the cumulative effect of the trial court’s purported
errors prejudiced Defendant’s trial.
We note at the outset that Defendant was not charged with
nor tried for “delivery” of marijuana under N.C. Gen. Stat. §
90-95(a)(1). Therefore, to the extent that Defendant’s
arguments at trial and on appeal depend upon the application of
the special evidentiary requirement of N.C. Gen. Stat. § 90-
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95(b)(2), they are mistaken. By its plain terms, N.C. Gen.
Stat. § 90-95(b)(2) applies only to the “delivery” of marijuana,
not to its possession or sale. See N.C. Gen. Stat. § 90-
95(b)(2) (“The transfer of less than 5 grams of marijuana . . .
for no remuneration shall not constitute a delivery in violation
of G.S. 90-95(a)(1).” (emphasis added)); see also State v. Land,
___ N.C. App. ___, ___, 733 S.E.2d 588, 590—92 (2012), aff'd per
curiam, 366 N.C. 550, 742 S.E.2d 803 (2013) (involving a
defendant convicted for one count of possession and one count of
delivery of less than 5 grams of marijuana, but found not guilty
for selling marijuana).
A. Defendant’s Lesser-Included Offense Argument
Defendant’s first assignment of error concerns the trial
court’s decision not to instruct the jury on the lesser-included
offense of possession of marijuana. “Failure to instruct upon
all substantive or material features of the crime charged is
error.” State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748
(1989). This Court makes a de novo review of arguments
challenging the trial court’s decisions regarding jury
instructions. State v. Osorio, 196 N.C. App. 458, 466, 675
S.E.2d 144, 149 (2009). The Court examines the evidence in the
light most favorable to the defendant to determine whether “the
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evidence would permit the jury rationally to find defendant
guilty of the lesser offense and to acquit him of the greater.”
Land, ___ N.C. App. at ___, 733 S.E.2d at 595 (quotation marks
and citation omitted).
The test for determining whether a trial court must
instruct the jury on a lesser-included offense is whether “there
is the presence, or absence, of any evidence in the record which
might convince a rational trier of fact to convict the defendant
of a less grievous offense.” State v. Millsaps, 356 N.C. 556,
562, 572 S.E.2d 767, 772 (2002) (internal quotation marks and
citations omitted). However, “[w]here the State’s evidence is
positive as to each element of the offense charged and there is
no contradictory evidence relating to any element, no
instruction on a lesser included offense is required.” Id.
(internal quotation marks and citation omitted). Therefore,
when the State successfully produces positive evidence on all
the elements of an offense, the trial court’s obligation is to
determine whether there is any contradictory evidence that could
rationally convince a juror that the defendant committed a less
grievous offense.
The contradictory evidence that would require a lesser-
included offense instruction can come from either party, the
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defense or the State. Id. The defendant need not testify nor
produce any evidence. Id. Whatever its source, however, the
evidence must “conflict” with or contradict other evidence in a
manner that could rationally persuade a juror that the charged
offense did not occur and a lesser-included offense would be
appropriate.
Here, Defendant was charged with possessing marijuana with
the intent to sell or deliver it, among other charges. See N.C.
Gen. Stat. § 90-95(a)(1). To convict Defendant of this crime,
the State must prove that (1) Defendant knowingly possessed
marijuana, either actually or constructively, and (2) Defendant
intended to sell or deliver the marijuana. See State v. Carr,
145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001). The trial
court’s jury instructions read in part:
If you find the evidence beyond a reasonable
doubt that on or about the alleged date the
defendant knowingly possessed marijuana, and
intended to sell or deliver it, it would be
your duty to return a verdict of guilty of
possession of marijuana with the intent to
sell or deliver. If you do not so find or if
you have a reasonable doubt as to one or
both of these things, you would return a
verdict of not guilty of possessing
marijuana with the intent to sell or deliver
it.
Defendant, however, requested a jury instruction on the lesser-
included offense of possession of marijuana because he
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transferred only 1.7 grams of the drug. He directs us to N.C.
Gen. Stat. § 90-95(b)(2) to contend that “[b]ecause the
marijuana weighed less than five grams, without proof of
[Defendant] receiving payment, [Defendant] could only be found
guilty of possession of marijuana.”
This argument is mistaken. As noted above, Defendant was
charged with possession with intent to sell or deliver and
selling marijuana, not “delivery” of marijuana. N.C. Gen. Stat.
§ 90-95(b)(2) applies only to the charge of “delivery” of a
controlled substance under § 90-95(a)(1), and then merely
specifies the evidentiary burden on the prosecution if the
defendant delivered less than 5 grams of marijuana. See Land,
___ N.C. App. at ___, 733 S.E.2d at 592.
To determine whether the trial court erred by refusing to
instruct the jury on the lesser-included offense of possession
of marijuana, therefore, we look only to whether the State’s
“positive” evidence on each element of the charged offense was
contradicted by other evidence. The State produced at trial
positive, testimonial evidence by Ms. Earp, a confidential
informant for the police, that she went to buy drugs from Mr.
Sanders because he was a known drug dealer. Ms. Earp also
testified that Defendant was the person to whom she was brought
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by Mr. Sanders when she stated that she wanted to purchase
marijuana. Her testimony showed that Defendant possessed
marijuana by physically securing it, measuring it, and weighing
it on a nearby digital scale before placing it in a bag and
handing it to Ms. Earp. Her testimony showed further that
Defendant intended to sell the marijuana because he had bags to
contain the marijuana and a digital scale to weigh the requested
amount. Furthermore, his entire activity of weighing, bagging,
and transferring the marijuana was in response to being told by
Mr. Sanders that Ms. Earp wanted to purchase $10 worth of the
drug.
The State also produced positive, testimonial evidence at
trial that Defendant received remuneration for transferring the
marijuana to Ms. Earp. Ms. Earp testified that “either prior or
right after I was given the pot” Mr. Sanders handed the $10 she
had given him for the drugs to Defendant. Ms. Earp reiterated
this testimony on cross-examination, stating that she saw
Defendant receive the $10 “with [her own] eyes.”
Defendant offered no contradictory evidence at trial.
Defendant proceeded solely by attempting to impeach Ms. Earp’s
testimony in the eyes of the jury. Defense counsel repeatedly
emphasized that the transfer of the $10 to Defendant was not
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captured on video, but Ms. Earp also repeatedly stated that she
saw Defendant hand over marijuana and receive $10 with her own
eyes.
Because the State introduced positive evidence on each
element of the charged offense, and Defendant did not offer any
conflicting evidence (and no such evidence was included in the
State’s case in chief), the trial court rightly declined to
instruct the jury on the lesser-included offense of possession
of marijuana. Defendant’s argument on appeal confuses the fact
that Ms. Earp’s video recording did not capture Defendant’s
receipt of $10 in exchange for the marijuana with the presence
or absence of evidence conflicting with her eye-witness
testimony. See Millsaps, 356 N.C. at 562, 572 S.E.2d at 772.
The absence of video recorded evidence of the transaction is not
contradictory evidence to Ms. Earp’s testimony that she
witnessed Defendant receive $10 in remuneration. It is merely
the absence of corroborating evidence. The mere absence of
corroborating evidence does not create a conflict in the
evidence that justifies a lesser-included offense instruction.
Given that the prosecution introduced uncontradicted
evidence of remuneration, the trial court rightly concluded that
the evidence did not support an instruction on a lesser-included
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offense. As to Defendant’s first argument, therefore, we find
that the trial court properly denied Defendant’s requested
instruction.
B. Defendant’s Excluded Argument Claim
Defendant next contends that the trial court erred when it
prevented defense counsel from arguing in her closing statement
that North Carolina has a “pot exception” for the transfer of
less than 5 grams of marijuana. This Court reviews a trial
court’s rulings on a party’s objections to improper closing
arguments for an abuse of discretion. See State v. Jones, 355
N.C. 117, 131, 558 S.E.2d 97, 106 (2002).
As our Supreme Court has noted, counsel for both sides are
entitled to argue the law and facts in evidence and all
reasonable inferences to be drawn therefrom. State v. Allen,
353 N.C. 504, 508, 546 S.E.2d 372, 375 (2001). However, that
Court has also “repeatedly stressed that counsel may not ‘travel
outside the record’ by arguing facts or matters not included in
the evidence of record.” Id. at 509, 546 S.E.2d at 375
(citations omitted). Counsel has a right to argue to the jury
“the whole case,” including issues of law and fact, but this
argument is subject to limits. State v. Britt, 288 N.C. 699,
712, 220 S.E.2d 283, 291 (1975). Specifically, “[t]he trial
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court has a duty, upon objection, to censor remarks not
warranted by either the evidence or the law, or remarks
calculated to mislead or prejudice the jury.” Id.
Here, Defendant asserts error in the following exchange
during the defense counsel’s closing argument:
[DEFENSE COUNSEL]: . . . Transfer of
marijuana in exchange for money. The State
hasn’t proven Mr. Dublin got any money,
ladies and gentlemen. In North Carolina,
furthermore, has [sic] an exception, a pot
exception as some like to call it. The
transfer of less than 5 grams of marijuana –
-
[STATE’S ATTORNEY]: Objection.
THE COURT: Basis?
[STATE’S ATTORNEY]: If I could approach?
THE COURT: Yes.
(Side-bar conference.)
THE COURT: Motion to strike is allowed. The
jury will not consider the last comment of
counsel.
In this exchange, defense counsel attempted to introduce an
argument based on N.C. Gen. Stat. § 90-95(b)(2)’s evidentiary
requirement for proving “delivery” of under 5 grams of
marijuana, misleadingly labeling it a “pot exception.”
The trial judge properly granted the prosecution’s motion
to strike this claim for two reasons. First and foremost,
Defendant was not charged with “delivery” of marijuana. As
noted above, N.C. Gen. Stat. § 90-95(b)(2) applies only to the
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issue of delivery. Defendant was charged with possession with
intent to sell or deliver and selling marijuana. For the trial
judge to permit argument based on N.C. Gen. Stat. § 90-95(b)(2)
would be to permit defense counsel to mislead the jury by
discussing a legal provision not applicable to the case before
them. Defense counsel was free to argue – as she in fact did –
that the State did not sufficiently prove Defendant was engaged
in the sale of marijuana (which involves remuneration). This
argument, however, would not involve introducing claims about §
90-95(b)(2)’s evidentiary requirement.
Second, the trial judge could reasonably determine that
allowing defense counsel to argue for the existence of a “pot
exception” for the transfer of less than 5 grams of marijuana
would mislead the jury. This statement courted the possibility
of misleading the jury into believing that Defendant could not
be guilty of possessing marijuana with the intent to sell or
deliver under N.C. Gen. Stat. § 90-95(a)(1) without proof of
remuneration.
For the foregoing reasons, we find no error in the trial
court’s decision to grant the prosecution’s motion to strike.
C. Defendant’s Remuneration Jury Instruction Argument
Defendant’s third claim is that the trial court erred by
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not instructing the jury that the transfer of less than 5 grams
of marijuana for no remuneration does not constitute delivery.
This Court makes a de novo review of arguments challenging the
trial court’s decisions regarding jury instructions, Osorio, 196
N.C. App. at 466, 675 S.E.2d at 149, and reviews those decisions
in the light most favorable to the defense. Land, ___ N.C. App.
at ___, 733 S.E.2d at 595.
The rule for jury instructions is that the trial court must
instruct the jury on all substantive or material features of the
crime charged. Bogle, 324 N.C. at 195, 376 S.E.2d at 748.
Here, Defendant was charged with possession with intent to sell
or deliver, selling marijuana, and conspiracy to sell marijuana
under N.C. Gen. Stat. § 90-95(a)(1). The trial court provided
instructions on all of these charges. The instruction on
selling marijuana read in relevant part:
If you find from the evidence beyond a
reasonable doubt that on or about the
alleged date, the defendant knowingly sold
marijuana to Elaine Earp, it would be your
duty to return a verdict of guilty. If you
do not so find or if you have a reasonable
doubt, it would be your duty to return a
verdict of not guilty.
Defense counsel did not object to the instruction on any of the
charged offenses.
Defense counsel did however request an instruction on
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“delivery” as it is defined under N.C. Gen. Stat. § 90-95(b)(2).
Defendant, however, was not charged with delivery of marijuana
under N.C. Gen. Stat. § 90-95(b)(2). The trial judge stated
explicitly and without objection during the discussion of jury
instructions that Defendant was not being charged with delivery
and that language to that effect would be left out of the
instructions. Without such a charge, an instruction introducing
the terms of N.C. Gen. Stat. § 90-95(b)(2) would have been
inappropriate because they did not apply to the charges before
the jury.
For the foregoing reasons, the trial court’s decision not
to instruct the jury on N.C. Gen. Stat. § 90-95(b)(2) was not
erroneous.
D. Defendant’s Improper Admission of Testimony Claim
Defendant’s fourth assignment of error concerns the
admission of testimony regarding his co-perpetrator’s guilty
plea to charges arising out of the same transaction. This Court
reviews for plain error a trial court’s improper admission of
evidence that was not objected to and thus not preserved. N.C.
R. App. P. 10(a)(4). “For error to constitute plain error, a
defendant must demonstrate that a fundamental error occurred at
trial. To show that an error was fundamental, a defendant must
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establish prejudice—that, after examination of the entire
record, the error had a probable impact on the jury’s finding
that the defendant was guilty.” State v. Lawrence, 365 N.C.
506, 518, 723 S.E.2d 326, 334 (2012) (citations and quotation
marks omitted).
The clear rule in North Carolina is that “neither a
conviction, nor a guilty plea, nor a plea of nolo contendere by
one defendant is competent as evidence of the guilt of a
codefendant on the same charges.” State v. Rothwell, 308 N.C.
782, 785, 303 S.E.2d 798, 800–01 (1983). Our Supreme Court
explained that the two-fold rationale of this rule is that (1)
“a defendant's guilt must be determined solely on the basis of
the evidence presented against him,” and (2) “that the
introduction of such a plea by a co-defendant, when he or she
has not testified at defendant's trial, would also deprive the
defendant of his constitutional right of confrontation and
cross-examination.” Id. at 785–86, 303 S.E.2d at 801 (citations
omitted).
Here, the prosecution asked Detective Richardson whether
Mr. Sanders, who was present in the courtroom, was charged in
the same case as the one confronting Defendant. Detective
Richardson responded that he had been charged and stated that he
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believed Mr. Sanders pleaded guilty to the charges. Defense
counsel did not object to this exchange during trial, thus
failing to preserve it for review. Nevertheless, by alleging
that the admission of this testimony was plain error, this issue
is properly before this Court on appeal. N.C. R. App. P.
10(a)(4).
The admission of Detective Richardson’s testimony was
error. Whether by design or inadvertently, the State’s inquiry
into “the status” of the charges against Defendant’s co-
perpetrator had no other purpose than to imply Defendant’s
“guilt by association” with his co-conspirator’s admission of
guilt. The only issue is whether this error amounts to plain
error.
The admission of Detective Richardson’s testimony regarding
Mr. Sanders’s guilty plea is not plain error because there is no
evidence that it had a probable impact on the jury finding
Defendant guilty of the charged offenses. There was substantial
evidence upon which the jury could have found Defendant guilty
even in the absence of the improper testimony. Ms. Earp’s
testimony suggested that Mr. Sanders brought her to Defendant in
response to her request to buy marijuana, that Defendant asked
her how much marijuana she wanted, that he weighed, bagged, and
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handed the drugs to her, and that he was given $10 for his
effort. Despite defense counsel’s vigorous effort to discredit
Ms. Earp on cross-examination, she did not waiver in her
testimony and clearly identified Defendant as the person from
whom she purchased the drugs.
Given the significant amount of evidence upon which the
jury could have rendered its verdict that was introduced between
the improper testimony and the jury’s deliberations, we hold
that the trial court’s admission of Detective Richardson’s
testimony was not plain error. Accordingly, we reject
Defendant’s fourth assignment of error.
E. Defendant’s Cumulative Effects Argument
Lastly, Defendant contends that the cumulative effects of
individual errors in his trial were sufficiently prejudicial to
deprive him of a fair trial. See State v. Canady, 355 N.C. 242,
246, 559 S.E.2d 762, 764 (2002) (reversing for cumulative error
where “none of the trial court’s errors, when considered in
isolation, were necessarily sufficiently prejudicial to require
a new trial”). We have identified only a single error in
Defendant’s trial and determined it not to be plain error. We
therefore reject Defendant’s final assignment of error.
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IV. Conclusion
For the reasons stated above, the decision of the trial
court is without error.
NO ERROR.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).