State v. Tomlinson

An unpublished opinion of the North Carolina Court of Appeals does not constitute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

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA14-1016

Filed: 1 September 2015

Nash County, No. 12 CRS 55249

STATE OF NORTH CAROLINA,

v.

CARLTON WASHINGTON TOMLINSON, Defendant.

Appeal by defendant from judgment entered 19 March 2014 by Judge Quentin

T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 5 February

2015.

Attorney General Roy Cooper, by Assistant Attorney General Kathleen N.
Bolton, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender James R.
Grant, for defendant-appellant.

GEER, Judge.

Defendant Carlton Washington Tomlinson appeals from a judgment imposing

a suspended sentence for misdemeanor possession of drug paraphernalia. On appeal,

defendant primarily argues that he is entitled to a new trial because the superior

court allowed him to proceed pro se even though it had not complied with the

mandatory inquiry in N.C. Gen. Stat. § 15A-1242 (2013) to determine whether

defendant’s waiver of his right to assistance of counsel was knowing, intelligent, and
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Opinion of the Court

voluntary. However, because defendant executed a written waiver of all right to

counsel at a prior hearing in the same proceedings, which was certified by the

presiding judge as having been adequately made, and defendant has not shown that

this prior waiver was inadequately made or that he withdrew that waiver, the prior

waiver was effective throughout his proceedings, and the superior court did not need

to repeat the inquiry set out in N.C. Gen. Stat. § 15A-1242. We, therefore, find no

error.

Facts

The State’s evidence tended to show the following facts. On 11 October 2012,

defendant was living with his wife at 2500 Goldrock Road in Rocky Mount, North

Carolina when Nash County Deputy Sheriff Raymond Carl Nicholls served defendant

with a notice of eviction. Although Deputy Nicholls told defendant to vacate by 22

October 2012, defendant responded that he would not.

On 24 October 2012, Deputy Nicholls, accompanied by eight to 10 other

officers, went to defendant’s residence to evict him. After defendant answered the

door, Deputy Nicholls stepped inside and told defendant he was not under arrest but

was being evicted, and he placed defendant in handcuffs. Officers conducted a sweep

of the house looking for other occupants, and one of the officers, Investigator Chris

Cary, noticed an “overwhelm[ing] . . . strong odor of marijuana” after walking into the

house. Investigator Cary also noticed a partially smoked marijuana blunt in an

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Opinion of the Court

ashtray in the master bedroom. Defendant admitted to ownership of those items and

anything else found in the house.

After leaving, Investigator Cary got a search warrant for the house. In

executing the search, he seized the partially smoked blunt he had observed earlier

along with blunt wrapping paper, a cigar, a loaded handgun, a bullet, a $2 bill, two

glass smoking pipes, smoke screens for pipes, and digital scales which were found in

the master bedroom. In another bedroom, Investigator Cary seized 2.2 grams of

marijuana. Investigator Cary also seized two more partially smoked marijuana

blunts and a marijuana grinder, which were found in the living room, in addition to

two more sets of digital scales from the kitchen.

That same day, an arrest warrant was issued for defendant charging him with

misdemeanor unlawful possession of one-half ounce or less of marijuana. The arrest

warrant also charged that “the defendant named above unlawfully and willfully did

and knowingly possess with intent to use drug paraphernalia, DIGITAL SCALES to

repackage a controlled substance which it would be unlawful to possess” in violation

of N.C. Gen. Stat. § 90-113.22(a).

On 29 November 2012, defendant appeared before Judge William G. Stewart

in Nash County District Court and signed a “WAIVER OF COUNSEL” stating: “I

waive my right to all assistance of counsel which includes my right to assigned

counsel and my right to the assistance of counsel. In all respects, I desire to appear

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Opinion of the Court

in my own behalf, which I understand I have the right to do.” Judge Stewart in turn

certified that defendant

has been fully informed in open court of the charges against
[him], the nature of and the statutory punishment for each
charge, and the nature of the proceeding against the
defendant and [his] right to have counsel assigned by the
court and [his] right to have the assistance of counsel to
represent [him] in this action; that the defendant
comprehends the nature of the charges and proceedings
and the range of punishments; that [he] understands and
appreciates the consequences of [his] decision and that the
defendant has voluntarily, knowingly and intelligently
elected in open court to be tried in this action:

....

. . . without the assistance of counsel, which includes the
right to assigned counsel and the right to assistance of
counsel.

Defendant then requested the Nash County District Court to allow “TJ Al

Malikei, Secretary of State of the Moorish Empire” to “be allowed to ‘present’

[defendant] in this case.” Judge Joseph J. Harper, Jr. denied the motion on the basis

that the person defendant requested “is not an attorney licensed or authorized to

practice law in this state or any other state.” The district court found defendant guilty

of both charged offenses on 19 February 2013, and defendant appealed to Nash

County Superior Court for a trial de novo.

At a pretrial hearing in superior court on 23 September 2013, Judge Quentin

T. Sumner engaged in the following colloquy with defendant:

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Opinion of the Court

THE COURT: . . . [Y]ou don’t have a lawyer. Do you
plan on representing yourself?

MR. TOMLINSON: I will represent myself, yes.

THE COURT: Do you understand that you’re
charged with a Class III misdemeanor and a Class I
misdemeanor, Class I misdemeanor is punishable by a
maximum term of imprisonment of 120 days, Class III, 20-
day max. Do you understand that, sir? And you do not
want a lawyer, is that right?

MR. TOMLINSON: No, sir; I would represent
myself.

THE COURT: Would you be so kind as to come over
and sign a waiver of your right --

MR. TOMLINSON: Sure.

THE COURT: -- to a counsel for me, please, sir?

Following this colloquy, defendant signed another waiver indicating his desire to

waive all rights to the assistance of counsel and to proceed pro se. Judge Sumner

certified this waiver.

Defendant proceeded to represent himself. The State’s evidence included

testimony from Deputy Nicholls and Investigator Cary. Defendant presented no

evidence. After a charge conference, the trial court instructed the jury on the

misdemeanors of possession of less than one-half ounce of marijuana and possession

of drug paraphernalia. The jury found defendant guilty of possession of drug

paraphernalia but not guilty of possession of marijuana. Defendant was given a

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Opinion of the Court

suspended sentence of 120 days imprisonment and 18 months supervised probation.

Defendant timely appealed to this Court.

I

Defendant first argues that the superior court erred when it found that he

waived his right to assistance of all counsel and allowed him to proceed pro se. We

review de novo a trial court’s ruling permitting a defendant to waive counsel and

proceed pro se. State v. Watlington, 216 N.C. App. 388, 394, 716 S.E.2d 671, 675

(2011).

“An accused’s right to counsel in a criminal prosecution is guaranteed by both

the North Carolina Constitution and the Sixth Amendment to the United States

Constitution.” State v. Rogers, 219 N.C. App. 296, 299-300, 725 S.E.2d 342, 345,

appeal dismissed and disc. review denied, 366 N.C. 232, 731 S.E.2d 171 (2012), cert.

denied, ___ U.S. ___, 185 L. Ed. 2d 595, 133 S. Ct. 1604 (2013). This right can be

waived, but “ ‘[a] defendant must first clearly and unequivocally waive his right to

counsel, and elect to proceed pro se. Thereafter, the trial court must determine

whether the defendant knowingly, intelligently and voluntarily waived his right to

in-court representation by counsel.’ ” State v. Jastrow, ___ N.C. App. ___, ___, 764

S.E.2d 663, 668 (2014) (quoting State v. Anderson, 215 N.C. App. 169, 170, 721 S.E.2d

233, 234 (2011), aff’d per curiam, 365 N.C. 466, 722 S.E.2d 509 (2012)). Thus,

“ ‘[b]efore allowing a defendant to waive in-court representation by counsel . . . the

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Opinion of the Court

trial court must insure that constitutional and statutory standards are satisfied.’ ”

Id. at ___, 764 S.E.2d at 668 (quoting State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d

473, 475 (1992)).

The legislature has enacted N.C. Gen. Stat. § 15A-1242 which requires a trial

court to inquire into the nature of a defendant’s decision to waive his right to counsel

before allowing him to proceed pro se:

A defendant may be permitted at his election to
proceed in the trial of his case without the assistance of
counsel only after the trial judge makes thorough inquiry
and is satisfied that the defendant:

(1) Has been clearly advised of his right to
the assistance of counsel, including his
right to the assignment of counsel
when he is so entitled;

(2) Understands and appreciates the
consequences of this decision; and

(3) Comprehends the nature of the charges
and proceedings and the range of
permissible punishments.

Our Supreme Court has held that “the inquiry required by N.C.G.S. § 15A-1242

satisfies constitutional requirements” for ensuring the waiver of the right to counsel

is made “knowingly, intelligently, and voluntarily.” Thomas, 331 N.C. at 674, 417

S.E.2d at 476.

Defendant contends that he did not waive his right to assistance of counsel

because Judge Sumner’s inquiry into defendant’s waiver in superior court was

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Opinion of the Court

inadequate. Defendant points out that Judge Sumner only advised him as to the

maximum sentences he would be facing for his charges. However, defendant does not

suggest any inadequacies in his original waiver in district court of “all assistance of

counsel.”

“[T]here is a presumption of regularity accorded the official acts of public

officers, such that ‘[w]hen a defendant executes a written waiver which is in turn

certified by the trial court, the waiver of counsel will be presumed to have been

knowing, intelligent, and voluntary, unless the rest of the record indicates

otherwise.’ ” State v. Wall, 184 N.C. App. 280, 283, 645 S.E.2d 829, 831-32 (2007)

(quoting State v. Kinlock, 152 N.C. App. 84, 89, 566 S.E.2d 738, 741 (2002), aff’d per

curiam, 357 N.C. 48, 577 S.E.2d 620 (2003)). Further, this Court has held that “[o]nce

given, a waiver of counsel is good and sufficient until the proceedings are terminated

or until the defendant makes known to the court that he desires to withdraw the

waiver and have counsel assigned to him.” State v. Hyatt, 132 N.C. App. 697, 700,

513 S.E.2d 90, 93 (1999).

The State argues that Wall controls this case. In Wall, this Court addressed

whether the trial court erred in allowing the defendant, who was charged with two

misdemeanors, to represent himself. 184 N.C. App. at 281, 282, 645 S.E.2d at 830,

831. The defendant had executed a written waiver of counsel on 24 March 2005 in

district court before Judge Joseph Williams and waived his right to assigned counsel.

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Opinion of the Court

Id. at 281, 645 S.E.2d at 830. On 9 June 2005, the defendant was found guilty of both

misdemeanors, and he appealed that judgment to superior court for a trial de novo.

Id., 645 S.E.2d at 830-31.

In superior court on 13 February 2006, before Judge Mark A. Klass, defendant

executed a second written waiver of his right to assistance of counsel and court-

appointed counsel. Id. Judge Klass certified that the defendant “ ‘voluntarily,

knowingly and intelligently elected in open court to be tried . . . without the assistance

of counsel[.]’ ” Id. at 283, 645 S.E.2d at 832. Then, on 13 March 2006, after going

through a colloquy in superior court before Judge Kimberly Taylor regarding whether

the defendant wished to be assisted by counsel, the defendant was allowed to proceed

pro se. Id. at 283-84, 645 S.E.2d at 832. A jury found him guilty of both

misdemeanors. Id. at 281, 645 S.E.2d at 831. After being sentenced, the defendant

stated to the trial court that “neither Judge Taylor nor Judge Klass informed him of

the ‘possible jail sentence . . . the charges would carry.’ ” Id. at 281-82, 645 S.E.2d at

831.

On appeal, the defendant in Wall argued that the trial court erred in allowing

him to proceed pro se because the colloquy before Judge Taylor was insufficient under

N.C. Gen. Stat. § 15A-1242, since “the trial court did not make an inquiry to satisfy

itself that defendant comprehended ‘the range of permissible punishments’ as

required by [N.C. Gen. Stat. § 15A-1242] subsection (3).” 184 N.C. App. at 282, 645

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Opinion of the Court

S.E.2d at 831. In rejecting the defendant’s argument that he should not have been

allowed to proceed pro se, this Court stressed: “Where the inquiry required by N.C.

Gen. Stat. § 15A-1242 has been made during a preliminary proceeding by a different

judge, it is not necessary for the trial judge to repeat the statutory inquiry.” Id. at

282-83, 645 S.E.2d at 831. Rather, “ ‘[a] thorough inquiry into the three substantive

elements of the statute, conducted at a preliminary stage of a proceeding, meets the

requirements of N.C.G.S. § 15A-1242 even if it is conducted by a judge other than the

judge who presides at the subsequent trial.’ ” Id. at 283, 645 S.E.2d at 831 (quoting

Kinlock, 152 N.C. App. at 89, 566 S.E.2d at 741).

Based on these principles, the Court noted that defendant had executed

written waivers both in district court and in superior court prior to Judge Taylor’s

inquiry. Id. at 284, 645 S.E.2d at 832. Consequently, Judge Taylor’s “inquiry was

not intended to be a full counsel inquiry as provided in N.C. Gen. Stat. § 15A-1242,

but rather to confirm defendant’s prior waiver of counsel to make sure defendant had

not changed his mind about wanting counsel.” Id. at 284-85, 645 S.E.2d at 832-33.

This Court held that Judge Taylor’s colloquy with defendant “in no way invalidated

defendant’s prior waiver of counsel” in district court or in superior court. Id. at 285,

645 S.E.2d at 833. The colloquy simply “confirmed to the court that [the defendant]

wished to proceed pro se in these cases.” Id.

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Opinion of the Court

In addition, although the record contained no transcript to the waiver

proceedings in district court or before Judge Klass in superior court, this Court

concluded that the prior waivers were nonetheless sufficient since they were

presumed valid. Id. “When the defendant’s own assertion is the sole evidence of

record that the trial court did not comply with the requirements of N.C. Gen. Stat. §

15A-1242 in executing defendant’s waivers of counsel, this standing alone is

insufficient to rebut the presumption of validity of prior waivers under [Kinlock].” Id.

at 281, 645 S.E.2d at 830. The Court then held: “Defendant’s statement [that he was

not informed of the possible punishments for his charges] in no manner challenges

the validity of his waiver of counsel before [the district court judge]. . . . [D]efendant’s

waivers of counsel before [the superior court and district court] were knowing,

intelligent and voluntary.” Id. at 285, 645 S.E.2d at 833.

The facts of this case are substantially similar to those in Wall. Here, in

district court, like the defendant in Wall, defendant executed a written waiver of right

to all assistance of counsel, which the district court judge certified as being voluntary,

knowing, and intelligent. Also like the defendant in Wall, defendant in this case

provided no transcripts of the hearing at which he executed the written waiver, and,

contrary to Wall, defendant in this case did not even suggest below that his prior

waiver in district court was inadequate.

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Opinion of the Court

We hold that defendant’s written waiver certified by Judge Stewart was

entitled to a presumption of correctness throughout all of defendant’s proceedings,

and defendant has failed to rebut this presumption. See also State v. Adams, 335

N.C. 401, 409, 439 S.E.2d 760, 764 (1994) (“[I]t is the appellant who has the burden

in the first instance of demonstrating error from the record on appeal.”). The legal

significance of Judge Sumner’s inquiry in superior court was, therefore, like Judge

Taylor’s inquiry in Wall simply “to make sure defendant had not changed his mind

about wanting counsel.” 184 N.C. App. at 285, 645 S.E.2d at 833.

Defendant nonetheless argues that he withdrew his written waiver by moving

to allow “TJ Al Malikei . . . to ‘present’ him in this case[.]” To withdraw a waiver of

counsel, “a criminal defendant must move or request the trial court to withdraw a

previous waiver of counsel.” Hyatt, 132 N.C. App. at 701, 513 S.E.2d at 93.

Defendant’s motion to allow TJ Al Malikei to represent him was essentially a

motion to allow defendant to choose his representation rather than have the court

appoint representation for him. While “[a]n essential element of [the] right [of

assistance of counsel] is the right to retain counsel of the accused’s choice[,]” Rogers,

219 N.C. App. at 300, 725 S.E.2d at 345, this right “ ‘is circumscribed in [that] . . .

[r]egardless of his persuasive powers, an advocate who is not a member of the bar

may not represent clients (other than himself) in court[,]’ ” State v. Phillips, 152 N.C.

App. 679, 683, 568 S.E.2d 300, 303 (2002) (quoting Wheat v. United States, 486 U.S.

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Opinion of the Court

153, 159, 100 L. Ed. 2d 140, 148-49, 108 S. Ct. 1692, 1697 (1988)). Here, the reason

the district court denied defendant’s motion was because “TJ Al Malikei” was not

authorized to practice law in any United States jurisdiction. Defendant does not

contest this finding, and there is nothing in the record to the contrary. Because

defendant’s motion did not ask for appointed counsel, let alone the ability to retain

counsel admitted to practice in North Carolina, the motion was consistent with

defendant’s waiver of his right to the assistance of counsel made before Judge

Stewart. It, therefore, could not be construed as a withdrawal of that waiver.

Accordingly, we hold that Judge Sumner did not err in allowing defendant to proceed

pro se.

II

Defendant next argues the trial court erred in instructing the jury on the crime

of possession of drug paraphernalia. Those instructions read,

First, that the Defendant possessed certain drug
paraphernalia. Drug paraphernalia means all equipment,
products and materials of any kind that are used to
facilitate, or intended or designed to facilitate, violations of
the Controlled Substance Act.

Second, the Defendant did this knowingly. A person
possesses drug paraphernalia knowingly when he is aware
of -- when he is aware of its presence, and has either by
himself or together with others both the power and intent
to control the disposition or use of said paraphernalia.

And Third, that the Defendant did so with the intent
to possess said drug paraphernalia in order to weigh a

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Opinion of the Court

control [sic] substance which would be unlawful to possess.
Marijuana is a controlled substance in North Carolina that
is unlawful to possess.

If you find from the evidence beyond a reasonable
doubt that on or about the alleged date the Defendant
unlawfully and knowingly possessed certain drug
paraphernalia in order to repackage a controlled -- I’m
sorry, make that in order to weigh a controlled substance
which would be unlawful to possess, then it would be your
duty to return a verdict of guilty. If you do not so find or
have a reasonable doubt as to one or more of these things,
it would be your duty to return a verdict of not guilty.

(Emphasis added.) Defendant challenges the portions of the instruction requiring the

jury to determine whether he intended to possess drug paraphernalia to weigh a

controlled substance and mandating that the jury should find defendant guilty of

possessing drug paraphernalia if he intended to use the scales to weigh a controlled

substance.

As an initial matter, we note that defendant failed to object to the instructions

a trial. Defendant contends that we should review his alleged errors for plain error,

although the State contends that defendant’s challenges to these instructions are not

reviewable on appeal because defendant either waived or invited any error with

respect to them.

“Absent objection, all instructional and evidentiary issues raised before this

Court must be tested under the plain error analysis as a result of defense counsel’s

failure to preserve these issues at the trial court.” State v. Gainey, 355 N.C. 73, 112,

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Opinion of the Court

558 S.E.2d 463, 487-88 (2002). Nonetheless, “ ‘a defendant who invites error . . .

waive[s] his right to all appellate review concerning the invited error, including plain

error review.’ ” State v. Grullon, ___ N.C. App. ___, ___, 770 S.E.2d 379, 382 (quoting

State v. Goodwin, 190 N.C. App. 570, 574, 661 S.E.2d 46, 49 (2008)), disc. review

denied, ___ N.C. ___, 772 S.E.2d 732 (2015).

At the charge conference, the prosecutor proposed amending the pattern jury

instructions by replacing “repackaging” with “weighing.” After making the requested

change to the proposed instructions, the trial court confirmed that defendant had

seen the correction and asked him, “Are you satisfied with that?” Defendant replied,

“Yes, sir.” As the transcript indicates that defendant expressed his satisfaction with

the amended instructions on paraphernalia possession to which he now objects,

defendant may not now be heard to complain on appeal. As our Supreme Court has

held: “ ‘To the extent that defendant agreed with the trial court’s manner of

instruction, defendant has invited any alleged error, and he may not obtain relief

from such error.’ ” State v. Thompson, 359 N.C. 77, 103, 604 S.E.2d 850, 869 (2004)

(quoting Gainey, 355 N.C. at 110, 558 S.E.2d at 486).

Nonetheless, even if defendant’s jury instruction arguments were properly

before this Court, defendant has not shown error. Challenges to “the trial court’s

decisions regarding jury instructions are reviewed de novo by this Court.” State v.

Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). First, defendant contends

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Opinion of the Court

that the use of “weigh” rather than “repackage” amounted to a failure to instruct on

the essential elements of the offense of possession of paraphernalia. As this Court

has stated,

It is well settled that the trial court must instruct
the jury on all substantial and essential issues of a case
arising on the evidence presented at trial. It is equally well
settled that the trial court is not required to give a
requested instruction in the exact language of the request,
so long as the instruction is given in substance.

State v. Hedgecoe, 106 N.C. App. 157, 162, 415 S.E.2d 777, 780 (1992) (internal

citation omitted).

This Court has recognized that “ ‘the preferred method of jury instruction is

the use of the approved guidelines of the North Carolina Pattern Jury Instructions.’ ”

State v. Boyd, 214 N.C. App. 294, 304, 714 S.E.2d 466, 474 (2011) (quoting State v.

Tyson, 195 N.C. App. 327, 335, 672 S.E.2d 700, 706 (2009)). Assuming the legal

correctness of the pattern instruction, “[e]ven though [a] trial court’s instructions

[are] not precisely identical to the pattern jury instructions, [if] they [are]

substantially so, . . . [a] defendant cannot show how the trial court’s instruction

prejudiced him.” State v. Brewington, 352 N.C. 489, 523, 532 S.E.2d 496, 516 (2000).

N.C. Gen. Stat. § 90-113.22(a) (2013) makes it illegal for “any person to

knowingly use, or to possess with intent to use, drug paraphernalia to plant,

propagate, cultivate, grow, harvest, manufacture, compound, convert, produce,

process, prepare, test, analyze, package, repackage, store, contain, or conceal a

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Opinion of the Court

controlled substance which it would be unlawful to possess, or to inject, ingest, inhale,

or otherwise introduce into the body a controlled substance which it would be

unlawful to possess.” N.C. Gen. Stat. § 90-113.21(a)(5) (2013) includes in its

definition of “paraphernalia” “[s]cales and balances for weighing or measuring

controlled substances[.]”

The pattern instruction reads as follows in pertinent part:

[T]hat the defendant [possessed drug paraphernalia] with
the intent to use said drug paraphernalia in order to (name
unlawful use; e.g., process) a controlled substance which
would be unlawful to possess. ((Name substance) is a
controlled substance in North Carolina that is unlawful to
possess.)

If you find from the evidence beyond a reasonable
doubt that on or about the alleged date the defendant
unlawfully and knowingly [used] [possessed with intent to
use] certain drug paraphernalia in order to (name unlawful
use; e.g., process) a controlled substance which would be
unlawful to possess, then it would be your duty to return a
verdict of guilty.

N.C.P.I.--Crim. 260.95 (2013). There is no dispute that the requested pattern

instruction is legally correct, nor is there any dispute that the evidence at trial

supported the instruction on possession of drug paraphernalia.

The State contends that State v. Spencer, 192 N.C. App. 143, 664 S.E.2d 601

(2008), establishes that the jury instruction was proper. In Spencer, this Court

considered whether a requested jury instruction for possession of drug paraphernalia

substantially conformed to N.C.P.I.--Crim. 260.95. Id. at 151, 664 S.E.2d at 607. This

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Court explained that “substantial conformity to N.C.P.I.--Crim. 260.95 allows the

trial court to insert any of the provisions of either section 90-113.21 or section 90-

113.22 . . . in the blank for name unlawful use.” Id. at 151-52, 664 S.E.2d at 607.

Spencer upheld an instruction where “[t]he trial court inserted ‘smoke, buy or sell’ in

the blank . . . [b]ecause each of [those] acts . . . are prohibited by either the Controlled

Substances Act or by N.C. Gen. Stat. § 90-113.22[.]” Id. at 152, 664 S.E.2d at 607.

The pattern instruction for possession of drug paraphernalia in Spencer is

identical in all relevant parts to the pattern instruction for possession of drug

paraphernalia here. See N.C.P.I.--Crim. 260.95 (2008). Additionally, N.C. Gen. Stat.

§ 90-113.22 has not changed in any way relevant to this case. “Weighing” a controlled

substance is exactly the unlawful purpose which characterizes a scale as drug

paraphernalia under N.C. Gen. Stat. § 99-113.21(a)(5). Thus, under Spencer, the trial

court’s use of “weigh” instead of “repackage” satisfied the requirement for properly

instructing on the essential elements of the crime of possession of drug

paraphernalia.

Defendant, however, contends that under Hedgecoe the jury should only have

been instructed on the defendant’s intent to use the alleged paraphernalia for one of

the express purposes listed in N.C. Gen. Stat. § 90-113.22. Hedgecoe, however,

addressed whether the evidence supported an instruction and conviction for

possession of drug paraphernalia. Hedgecoe held that “the State must present

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Opinion of the Court

substantial evidence that defendant possessed the hypodermic syringe and needle

found on him . . . with the intent to use the syringe in connection with controlled

substances.” 106 N.C. App. at 164, 415 S.E.2d at 781 (emphasis added). This Court

reasoned that the State was not entitled to an instruction on possession of drug

paraphernalia because the State only established that a hypodermic needle and

syringe were found in defendant’s possession, and “the mere possession of the needle

and syringe fail[ed] to establish the crucial element of possession of drug

paraphernalia with the accompanying intent necessary to establish a violation of our

Controlled Substances Act.” Id.

Because it is undisputed here that there was substantial evidence to support

defendant’s conviction for possession of drug paraphernalia, Hedgecoe does not inform

our analysis. Further, while Hedgecoe held that evidence of intent to use an object in

connection with a controlled substance must be presented to support an instruction

on possession of drug paraphernalia, Hedgecoe did not hold that the trial court, in

instructing the jury, may only quote from the list of impermissible uses in N.C. Gen.

Stat. § 90-113.22 with respect to the element of intent. Hedgecoe’s holding that the

State must present evidence that a defendant intended to use an item “in connection

with [a] controlled substance” does not conflict with Spencer, because both N.C. Gen.

Stat. §§ 99-113.21 and 99-113.22 contain language specifying purposes for which

paraphernalia may be used with controlled substances. 106 N.C. App. at 164, 415

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S.E.2d at 781. We, therefore, hold, under Spencer, that the trial court properly

instructed the jury on all essential elements of the crime of possession of drug

paraphernalia.

III

Finally, defendant argues that the possession of drug paraphernalia

instructions amounted to error because the substitution of “weigh” for “repackage”

constituted a variance between the theory of guilt stated in the arrest warrant and

the theory of guilt on which the jury was instructed. “[A trial court’s] failure to

instruct on the theory charged in the [charging instrument], in addition to its

instructions on theories not charged, constitutes prejudicial error entitling defendant

to a new trial on the charge . . . .” State v. Taylor, 301 N.C. 164, 171, 270 S.E.2d 409,

414 (1980).

The State contends that State v. Shearin, 170 N.C. App. 222, 612 S.E.2d 371

(2005), is controlling on this issue. In Shearin, this Court considered whether a jury

instruction varied from the underlying theory in an indictment. Id. at 233, 612 S.E.2d

at 380. The indictment stated that the defendant “ ‘unlawfully, willfully did

knowingly possess with intent to use drug paraphernalia, SCALES FOR

PACKAGING A CONTROLLED SUBSTANCE, which it would be unlawful to

possess[.]’ ” Id., 612 S.E.2d at 379-80. The jury instruction explained that the charge

of possession of drug paraphernalia required that the defendant “ ‘did [knowingly

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Opinion of the Court

possess drug paraphernalia] with the intent to use said drug paraphernalia in order

to possess a controlled substance which would be unlawful to possess[,]’ ” and that

the defendant was guilty of the charge if he “ ‘unlawfully and knowingly possessed

with intent to use certain drug paraphernalia in order to unlawfully use marijuana

or cocaine, both being controlled substances which would be unlawful to possess.’ ”

Id., 612 S.E.2d at 380.

In rejecting the defendant’s claim of a variance between the indictment and

instruction in Shearin, this Court explained that “[t]he only substantial difference in

the language of the indictment and the jury instruction is the description of the drug

paraphernalia . . . . The underlying theory being presented to the jury is the same

theory that supported the indictment for possession of drug paraphernalia. Contrary

to what defendant appears to argue, ‘packaging’ as used in the indictment is not a

different theory of guilt.” Id.

This case is materially indistinguishable from Shearin. Here, defendant was

charged with possessing alleged paraphernalia described as “DIGITAL SCALES to

repackage a controlled substance.” The jury was instructed that he possessed

paraphernalia for the purpose of weighing it. As in Shearin, the only substantial

difference between the indictment and the instruction was the description of the

alleged paraphernalia, and, further, using a scale to “weigh” a controlled substance

is reasonably seen as part and parcel with using it to “repackage” the substance. See

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Opinion of the Court

State v. Miranda, ___ N.C. App. ___, ___, 762 S.E.2d 349, 357 (2014) (holding digital

scales and plastic bags in room with cocaine provided reasonable inference that

paraphernalia was used to weigh and package cocaine). Therefore, “repackaging” as

used in the indictment “is not a different theory of guilt.” Shearin, 170 N.C. App. at

233, 612 S.E.2d at 380. We conclude that the jury instruction did not vary from the

theory of guilt described in the arrest warrant.

NO ERROR.

Judges STEPHENS and DILLON concur.

Report per Rule 30(e).

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