IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1144
Filed: 2 August 2016
Caldwell County, No. 12 CRS 50686
STATE OF NORTH CAROLINA
v.
LARRY WILLIAM ABRAMS
Appeal by defendant from judgments entered 27 May 2015 by Judge Robert C.
Ervin in Caldwell County Superior Court. Heard in the Court of Appeals 27 April
2016.
Attorney General Roy Cooper, by Assistant Attorney General Deborah M.
Greene, for the State.
Leslie Rawls for defendant-appellant.
CALABRIA, Judge.
Larry William Abrams (“defendant”) appeals from judgments entered upon
jury verdicts finding him guilty of possession with intent to sell or deliver marijuana,
intentionally maintaining a building to keep controlled substances, and possession of
drug paraphernalia. We conclude defendant received a fair trial, free from error.
I. Background
During a traffic stop on 13 February 2012, Willie Cloninger (“Cloninger”)
consented to deputies of the Caldwell County Sheriff’s Department (“CCSD”)
searching his vehicle. He told CCSD that he had four ounces of marijuana under his
STATE V. ABRAMS
Opinion of the Court
seat and agreed to make undercover buys for them. Cloninger made three buys at
defendant’s home. After each buy, Cloninger met with the officers and returned the
purchased substances to them.
James Ferguson also cooperated with the CCSD. When his home was raided,
he admitted to purchasing marijuana from defendant for the past nine months.
Subsequently, CCSD executed a search warrant on defendant’s home and recovered,
inter alia, “[f]ive Ziploc bags of green vegetable plant matter” and various other
containers of plant material. Georgiana Baxter (“Agent Baxter”), a special agent with
the North Carolina State Bureau of Investigation (“SBI”) and a forensic scientist with
the North Carolina State Crime Lab (“NC Lab”) in the Western Regional Laboratory
(“WRL”) in Asheville, tested the plant matter recovered from defendant’s home and
concluded that it was marijuana. Defendant was charged with, inter alia, possession
with intent to sell or deliver marijuana, intentionally maintaining a building to keep
controlled substances, and possession of drug paraphernalia.
At trial, the State tendered Agent Baxter as an expert witness. Agent Baxter
currently serves as a forensic scientist supervisor in the chemistry section of the NC
Lab in WRL, where she has worked for nearly fourteen years. She has completed the
specialized “in-house training program through the [NC Lab] dealing with all aspects
of forensic drug analysis” and was certified by the American Board of Criminalistics
in the area of forensic drug analysis. As of the date she testified, Agent Baxter had
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Opinion of the Court
been previously tendered and admitted as an expert approximately eighty-seven
times to give her opinion as to whether a substance was a controlled substance.
Agent Baxter testified that she examined the plant material recovered from
defendant’s residence pursuant to the procedures set forth by NC Lab for analyzing
and identifying marijuana. Those procedures called for an analyst to separate the
vegetable material from its packaging and record its weight; conduct a visual
inspection of the material with the naked eye; conduct an inspection of the material
under a microscope; and then conduct a chemical test to determine the presence of
tetrahydrocannabinol (“THC”), the active component of marijuana. After conducting
this analysis on the vegetable material recovered from defendant’s home, Agent
Baxter concluded that it was marijuana.
On 27 May 2015, a Caldwell County jury returned verdicts finding defendant
guilty of possession with intent to sell or deliver marijuana, intentionally maintaining
a building to keep controlled substances, and possession of drug paraphernalia. The
trial court sentenced defendant to a 60-day active sentence to be served in the custody
of the Sherriff of Caldwell County, as well as a minimum of 6 months and a maximum
of 17 months to be served in the North Carolina Division of Adult Correction, where
he was placed on supervised probation for 30 months with monetary and special
conditions of probation. Defendant appeals.
II. Identification of Marijuana
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Opinion of the Court
Defendant argues the trial court abused its discretion by admitting expert
testimony identifying the substance recovered from his home as marijuana, in
violation of the new reliability inquiry imposed by amended Rule 702(a) of the North
Carolina Rules of Evidence. We disagree.
A. Expert Testimony, the Daubert Standard
As an initial matter, “North Carolina is now a Daubert state.” State v.
McGrady, __ N.C. __, __, __ S.E.2d __, __, 2016 N.C. LEXIS 442, at *13 (2016). Rule
702(a) governs the admission of expert witness testimony. In 2011, our General
Assembly amended Rule 702(a) to reflect its federal counterpart, which itself was
amended in 2000 in response to the standard articulated in Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993) and later clarified
in General Electric Co. v. Joiner, 522 U.S. 136, 139 L.Ed.2d 508, 118 S.Ct. 512 (1997)
and Kumho Tire. Co. v. Carmichael, 526 U.S. 137, 143 L.Ed.2d 238, 119 S.Ct. 1167
(1999). McGrady, __ N.C. at __, __ S.E.2d at __, 2016 N.C. LEXIS 442, at *7.
Our Supreme Court recently interpreted the 2011 amendment to Rule 702(a)
to “adopt[] the federal standard for the admission of expert witness testimony
articulated in the Daubert line of cases[,]” and held that “the meaning of North
Carolina’s Rule 702(a) now mirrors that of the amended federal rule.” Id. at __, __
S.E.2d at __, 2016 N.C. LEXIS 442, at *6.
B. Standard of Review
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Opinion of the Court
We review a trial court’s ruling on the admissibility of expert testimony
pursuant to Rule 702(a) for an abuse of discretion. Id. at __, __ S.E.2d at __, 2016
N.C. LEXIS 442, at *22. “ ‘[A] trial court may be reversed for abuse of discretion only
upon a showing that its ruling was manifestly unsupported by reason and could not
have been the result of a reasoned decision.’ ” Id. at __, __ S.E.2d at __, 2016 N.C.
LEXIS 442, at *22 (quoting State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59
(1986)).
In reviewing a trial court’s application of Rule 702(a), our Supreme Court
instructed:
To determine the proper application of North Carolina’s
Rule 702(a) . . . [the reviewing court] must look to the text
of the rule, to [Daubert, Joiner, and Kumho], and also to
our existing precedents, as long as those precedents do not
conflict with the rule’s amended text or with Daubert,
Joiner, and Kumho.
Id. at __, __ S.E.2d at __, 2016 N.C. LEXIS 442, at *14.
C. Discussion
Rule 702(a) provides in pertinent part:
(a) If 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 thereto in the form of an opinion, or otherwise, if all
of the following apply:
(1) The testimony is based upon sufficient facts or
data.
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Opinion of the Court
(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) (2015). Inquiry under the amended Rule 702(a)
still involves a “three-step framework—namely, evaluating qualifications, relevance,
and reliability[,]” McGrady, __ N.C. at __, __ S.E.2d at __, 2016 N.C. LEXIS 442, at
*20, and “expert testimony must satisfy each to be admissible.” Id. at __, __ S.E.2d
at __, 2016 N.C. LEXIS 442, at *14. In the instant case, defendant does not dispute
Agent Baxter’s credentials nor the relevance of her testimony, but challenges its
reliability.
1. Reliable Principles and Methods
Defendant contends Agent Baxter’s testimony was not “the product of reliable
principles and methods[,]” in violation of Rule 702(a)(2), on the basis that “the State
did not present any testimony relating to [Daubert’s] five factors. Nor did it present
any other support for the reliability of the test Baxter used to determine the nature
of the vegetable matter.” We disagree.
Regarding Daubert’s and other particular factors a trial court may consider
when determining reliability, our Supreme Court explained:
In the context of scientific testimony, Daubert
articulated five factors from a nonexhaustive list that can
have a bearing on reliability: (1) “whether a theory or
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STATE V. ABRAMS
Opinion of the Court
technique . . . can be (and has been) tested”; (2) “whether
the theory or technique has been subjected to peer review
and publication”; (3) the theory or technique’s “known or
potential rate of error”; (4) “the existence and maintenance
of standards controlling the technique’s operation”; and (5)
whether the theory or technique has achieved “general
acceptance” in its field. Daubert, 509 U.S. at 593-94. When
a trial court considers testimony based on “technical or
other specialized knowledge,” N.C. R. Evid. 702(a), it
should likewise focus on the reliability of that testimony,
Kumho, 526 U.S. at 147-49. The trial court should consider
the factors articulated in Daubert when “they are
reasonable measures of the reliability of expert testimony.”
Id. at 152. Those factors are part of a “flexible” inquiry,
Daubert, 509 U.S. at 594, so they do not form “a definitive
checklist or test,” id. at 593. And the trial court is free to
consider other factors that may help assess reliability given
“the nature of the issue, the expert’s particular expertise,
and the subject of his testimony.” Kumho, 526 U.S. at 150.
The federal courts have articulated additional
reliability factors that may be helpful in certain cases,
including:
(1) Whether experts are proposing to testify about
matters growing naturally and directly out of
research they have conducted independent of the
litigation, or whether they have developed their
opinions expressly for purposes of testifying.
(2) Whether the expert has unjustifiably
extrapolated from an accepted premise to an
unfounded conclusion.
(3) Whether the expert has adequately accounted for
obvious alternative explanations.
(4) Whether the expert is being as careful as he
would be in his regular professional work outside his
paid litigation consulting.
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Opinion of the Court
(5) Whether the field of expertise claimed by the
expert is known to reach reliable results for the type
of opinion the expert would give.
Fed. R. Evid. 702 advisory committee’s note to 2000
amendment (citations and quotation marks omitted). In
some cases, one or more of the factors that we listed in
Howerton may be useful as well. See Howerton [v. Arai
Helmet, Ltd.], 358 N.C. [440,] 460, 597 S.E.2d [674,] 687
[(2004)] (listing four factors: use of established techniques,
expert’s professional background in the field, use of visual
aids to help the jury evaluate the expert’s opinions, and
independent research conducted by the expert).
Whatever the type of expert testimony, the trial
court must assess the reliability of the testimony to ensure
that it complies with the three-pronged test in Rule
702(a)(1) to (a)(3). The court has discretion to consider any
of the particular factors articulated in previous cases, or
other factors it may identify, that are reasonable measures
of whether the expert’s testimony is based on sufficient
facts or data, whether the testimony is the product of
reliable principles and methods, and whether the expert
has reliably applied those principles and methods in that
case. See Kumho, 526 U.S. at 150-53.
McGrady, __ N.C. at __, __ S.E.2d at __, 2016 N.C. LEXIS 442, at *18-20 (footnotes
omitted). In addition, our Supreme Court emphasized that “Rule 702(a), as amended
in 2011, does not mandate particular ‘procedural requirements for exercising the trial
court’s gatekeeping function over expert testimony.’ ” Id. at __, __ S.E.2d at __, 2016
N.C. LEXIS 442, at *22 (quoting Fed. R. Evid. 702).
In the instant case, Agent Baxter’s testimony established that she analyzed
the vegetable matter recovered from defendant’s home in accordance with the
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Opinion of the Court
procedures for identifying marijuana employed by NC Lab at the time. Regarding
Rule 702(a)(2), the reliability of the “principles and methods” employed, Agent Baxter
explained that when identifying a substance as marijuana:
The first thing that I’m going to do . . . is . . . separate any
weighable material from its packaging that I receive it in.
So I want the weight of just the material itself. I’m going
to record that weight. At that point, I’m going to proceed
with my analysis, conducting some type of preliminary
analysis, whether that be a color test. In this particular
case, with plant material, it’s going to include a microscopic
examination as well. After that, I’m going to do some type
of chemical analysis to confirm the identification.
Regarding the microscopic exam, Agent Baxter explained in greater detail:
There’s basically four characteristics that we’re looking for
with marijuana. They have unique characteristics about
their leaves. They have particular types of hairs that grow
on those leaves. The stems of marijuana plants aren’t
rounded like a lot of tree, or you know, other types of plant
material. They’re fluted so . . . they’re almost square, with
concave edges. The seeds of the marijuana plant are very
unique in that they are mottled, which means they look like
little turtles’ backs. So those are the kinds of things that
we’re looking for when we look under the microscope.
Regarding the chemical analysis, Agent Baxter explained that she conducted
what is referred to as a Duquenois-Levine color test[, which
is] a chemical test that reacts with certain compounds. In
this case, it reacts with certain cannabinoids, such as THC,
which is the active component in marijuana.
Based on her detailed explanation of the systematic procedure she employed
to identify the substance recovered from defendant’s home, a procedure adopted by
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Opinion of the Court
the NC Lab specifically to analyze and identify marijuana, her testimony was clearly
the “product of reliable principles and methods” sufficient to satisfy the second prong
of Rule 702(a), and the trial court did not abuse its discretion in admitting this
testimony. We overrule defendant’s challenge.
2. Application of Reliable Principles and Methods
Defendant next contends Agent Baxter’s testimony did not establish that she
“applied the principles and methods reliably to the facts of the case[,]” in violation of
Rule 702(a)(3). We disagree.
Agent Baxter testified that “we handle every case the same. We only work one
item of evidence at a time, so as to prevent any type of cross-contamination during
analysis.” Agent Baxter received five bags of vegetable matter for testing, and
explained:
Based on our sampling procedures at that time, . . . I was
required to randomly select three of those plastic bags and
do a complete chemical analysis.
After selecting the first bag, Agent Baxter “separated it from the packaging
material, [and measured the] weight o[f] that material[,]” which was “379.21 grams.”
Next, she performed “a macroscopic [examination]. . . for particular characteristics.
[She] then did a microscopic examination of the material[.]” Subsequently, she
performed “a Duquenois-Levine color test” and “receive[d] a positive indication[.]”
Based on her analysis, Agent Baxter concluded that the substance was marijuana.
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Opinion of the Court
Regarding analyzing the two other samples, Agent Baxter testified that she
applied the same procedures she used to analyze the first sample:
Once again, I separated it from its packaging material to
obtain that net weight. I visually observed the material,
did a microscopic examination as well as the chemical test
that I performed[.]
Agent Baxter concluded that, based on her analysis, the substance tested in
each of the bags was marijuana.
Agent Baxter’s testimony established that the principles and methods she
employed were “applied . . . reliably to the facts of the case[,]” per Rule 702(a)(3).
Therefore, the trial court did not abuse its discretion by admitting her testimony.
III. Conclusion
Agent Baxter’s testimony was “the product of reliable principles and methods”
“applied . . . reliably to the facts of the case[,]” which satisfied the two challenged
prongs of the reliability analysis under Rule 702(a). Defendant has failed to show the
trial court abused its discretion in admitting Agent Baxter’s expert testimony
identifying the substance as marijuana. McGrady, __ N.C. at __, __ S.E.2d at __, 2016
N.C. LEXIS 442, at *22. Therefore, we conclude defendant received a fair trial, free
from error.
NO ERROR.
Judge TYSON concurs.
Judge HUNTER, JR. concurs in a separate opinion.
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No. COA15-1144 – State v. Abrams
HUNTER, JR., Robert N., Judge, concurs in a separate opinion.
I concur in holding the trial court did not commit error, but write separately to
briefly discuss difficulties this Court faces in reviewing Daubert challenges on appeal.
Our Supreme Court and legislature have held North Carolina is a Daubert
state. See State v. McGrady, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (72PA14 2016).
Our trial courts are bound to follow Daubert and its related guidance. At the present,
trial courts are not required to make findings of fact or conclusions of law when they
accept or reject an expert witness. With the advent of Daubert, this is problematic to
appellant review. See State v. Walston, __ N.C. App. __, __, 780 S.E.2d 846, 862
(2015).
To utilize an expert witness in North Carolina, the moving party must show
the witness’s expertise puts the expert in a better position to have an opinion on a
given subject than the trier of fact. See State v. Goode, 341 N.C. 513, 529, 461 S.E.2d
631, 640 (1995). The movant must show the witness is “qualified as an expert by
knowledge, skill, experience, training, or education . . . .” N.C. Gen. Stat. § 8C-1, Rule
702(a) (2015). Then, the movant must follow the three-part framework of Rule 702
and show the testimony is based up sufficient facts or data, is the product of reliable
principles and methods, and the expert witness applied the principle and methods
reliably to the facts of the case. Id. At issue in the case sub judice, the reliability
prong poses procedural challenges for this Court’s appellate review.
STATE V. ABRAMS
HUNTER, JR., J., concurring
Because the substantive rule has an extensive history in federal law, our courts
would adopt the federal procedure found in federal courts. However, the United
States Circuit Courts of Appeal do not agree on the issue of whether a trial court must
conduct a formal Daubert hearing when it applies the sufficiency and reliability
factors in Rule 702. Circuits that allow a trial court to forego a Daubert hearing
suggest a trial court can conduct a voir dire examination of the witness or allow the
movant to establish a foundation on direct examination or through affidavits and
expert reports. See In re Hanford Nuclear Reservation Litigation, 292 F.3d 1124,
1138–39, (9th Cir. 2002); United States v. Glover, 479 F.3d 511, 517 (7th Cir. 2007);
Hoult v. Hoult, 57 F.3d 1, 5 (1st Cir. 1995) (“[W]e assume that the [trial] court
performs [the Daubert] analysis sub silentio throughout the trial with respect to all
expert testimony.”); United States v. Lacascio, 6 F.3d 924 (2d Cir. 1993); United States
v. Johnson, 488 F.3d 690, 697 (6th Cir. 2007). The other circuits that require a formal
Daubert hearing face a nuanced procedural challenge—whether an in limine hearing
is required when there is a material dispute as to the expert’s reliability. See
Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1302 (Fed. Cir. 2002); see also
Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 418 (3d Cir. 1999). Of the two lines of
cases, the United States Supreme Court generally supports a trial court’s procedural
discretion in conducting a Daubert inquiry. Kumho Tire Co. v. Carmichael, 526 U.S.
137, 152 (1999) (“[W]e conclude that the trial judge must have considerable leeway in
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HUNTER, JR., J., concurring
deciding in a particular case how to go about determining whether particular expert
testimony is reliable. That is to say, a trial court should consider the specific factors
identified in Daubert where they are reasonable measures of the reliability of expert
testimony. The trial court must have the same kind of latitude in deciding how to
test an expert's reliability, and to decide whether or when special briefing or other
proceedings are needed to investigate reliability, as it enjoys when it decides whether
or not that expert’s relevant testimony is reliable.”).
However, parties may wish to build a record to contest specific findings when
an expert is accepted or rejected. In civil trials parties may move to amend a trial
court’s findings of fact pursuant to N.C. R. Civ. P. 52(b), request specific findings on
a witness’s qualifications through an objection pursuant to N.C. R. Civ. P. 46(a)(1), or
provide an offer of proof outside of the presence of the jury when their witness is
excluded as an expert, pursuant to N.C. R. Evid. 103(a)(2). However, this leaves
parties in criminal trials with no procedural mechanism to compel the trial court to
make findings of fact or conclusions of law regarding its acceptance or rejection of an
expert witness. This also creates the possibility of a silent record when parties
stipulate to an expert’s qualifications and/or reliability, and the movant fails to
provide an offer of proof for the record to show its witness meets the Daubert
requirements.
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STATE V. ABRAMS
HUNTER, JR., J., concurring
Given these federal distinctions, one model for procedure is to import the Rule
404(b) procedure in Rule 702. Under Rule 404(b), if a party fails to challenge the
admissibility of evidence through a motion in limine, but does raise the issue at trial,
the trial court holds a voir dire hearing. See, e.g., State v. Beckelheimer, 366 N.C.
127, 131, 726 S.E.2d 156, 160–61 (2012). At this hearing, the trial court conducts a
five part analysis: (1) whether there is sufficient evidence the party committed the
act; (2) whether the evidence serves a proper purpose; (3) whether the evidence is
sufficiently similar to the act in question; (4) whether the evidence and act in question
are temporally proximate; and (5) whether the evidence survives the Rule 403
balancing test. See Id.; see also State v. Oliver, 210 N.C. App. 609, 613, 709 S.E.2d
503, 506 (2011). Then the trial court must make formal findings and note its findings
for the record. See State v. Smith, 152 N.C. App. 514, 528, 568 S.E.2d 289, 298 (2002)
(presumed error when the trial court does not note Rule 403 analysis on the record);
State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388 (2000) (no error when the
trial court demonstrates a Rule 403 analysis in its ruling); State v. Rowland, 89 N.C.
App. 372, 383, 366 S.E.2d 550, 556 (1988) (holding 404(b) evidence is inadmissible
when a trial court fails to make findings of admissibility under Rule 404(b)).
Accordingly, best practice dictates parties should challenge an expert’s
admissibility through a motion in limine. In the event a trial court delays its ruling
on the matter, or in the event a party fails to raise the challenge until the expert is
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HUNTER, JR., J., concurring
called upon at trial, our trial courts should afford parties a voir dire hearing to
examine the witness and submit evidence into the record, which this Court can review
on appeal. Lastly, in ruling on the expert’s admissibility, the trial court should
identify the Daubert factors and make findings of fact and conclusions of law, either
orally or in writing, as to the expert’s admissibility.
Here, the State provided sufficient evidence to show Agent Baxter met all the
Daubert requirements. I concur in holding the trial court did not commit error.
5