State v. GlissonÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA16-426

Filed: 7 February 2017

Jones County, Nos. 12 CRS 50869-72, 78-79

STATE OF NORTH CAROLINA,

DEBORAH LYNN GLISSON, Defendant.

Appeal by Defendant from judgment entered 12 September 2014 by Judge

Kenneth F. Crow in Jones County Superior Court. Heard in the Court of Appeals 2

November 2016.

Attorney General Joshua H. Stein, by Assistant Attorney General David D.
Lennon, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine
Jane Allen, for Defendant-Appellant.

INMAN, Judge.

Deborah Lynn Glisson (“Defendant”) appeals from a judgment finding her

guilty of, inter alia, felonious conspiracy to traffic opium by sale and delivery and

possession of oxycodone with intent to sell and deliver. Defendant contends the trial

court erred by denying her motion to dismiss the conspiracy charge related to the

controlled buy on 13 September 2012 for insufficiency of the evidence. After careful

review, we hold that Defendant has failed to demonstrate error.

I. Factual and Procedural History
STATE V. GLISSON

Opinion of the Court

Defendant was indicted on 5 August 2013, 28 April 2014, and 4 August 2014

for eighteen drug-related offenses arising from three separate controlled buys

arranged by the Jones County Sheriff’s Office between August and December 2012.

The evidence at trial tended to show the following:

On or about August 2012, an informant with the Jones County Sheriff’s Office

contacted Detective Timothy Corey (“Detective Corey”) and informed him that a

couple, believed to be husband and wife, were selling oxycodone. At Detective Corey’s

direction, the informant arranged for a controlled buy from Defendant.

On 16 August 2012, Detective Corey and the informant met Defendant, who

was accompanied by James Adkins (“Adkins”), in a parking lot in Pottersville, North

Carolina. Defendant and Adkins arrived in a Ford Focus, which Defendant was

driving. Defendant exited the Ford and walked over to the informant’s vehicle to talk

with him. The informant introduced Detective Corey as a family member from out of

town who wanted to buy oxycodone. After a short conversation, Detective Corey

requested oxycodone and paid Defendant $140. Defendant then turned to the

passenger side front seat of the Ford and spoke with Adkins, who produced a pill

bottle. Defendant counted out a number of pills and gave them to Detective Corey.

The pills were later confirmed to be oxycodone.

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STATE V. GLISSON

Opinion of the Court

Detective Corey and the informant then arranged for a second controlled buy

from Defendant. On or about 13 September 2012,1 Detective Corey met the informant

in an unfinished subdivision, and shortly thereafter, at dusk, Defendant and Adkins

arrived in the same Ford Focus Defendant had driven to the initial controlled buy.

Defendant told Detective Corey that she did not like the meeting location “because

it’s a subdivision that, you know, she don’t know where anybody is coming from.”

Defendant gave Detective Corey twenty oxycodone pills in exchange for $80.

Detective Corey set up a third controlled buy to take place on 7 December 2012

in the same unfinished subdivision as the second controlled buy. Defendant told

Detective Corey that she had to pick up Adkins before the meeting. Detective Corey

met Defendant and Adkins and paid Defendant $200. Adkins then handed Detective

Corey thirty-four oxycodone pills. Defendant was arrested immediately after

delivering the pills to Detective Corey.

At the close of the State’s evidence, Defendant made an oral motion to dismiss

on all charges. Defendant’s trial counsel argued that the State’s evidence and testing

methods were insufficient to satisfy the minimum weight requirement element for

the charge of trafficking opium. The trial court dismissed one trafficking in opium

by possession charge and reduced the other two charges from trafficking in opium to

1 There were several errors made at trial as to the date of the second controlled buy. However,
defense counsel raised no objections and did not offer an alibi defense for the events of 13 September
2012 or any of the other mistaken dates.

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STATE V. GLISSON

Opinion of the Court

sale and delivery of opium. Defendant chose not to testify and presented no evidence.

Her counsel renewed her general motion to dismiss all remaining charges based on

the insufficiency of the evidence. The trial court denied the motion to dismiss.

Following a meeting with counsel in chambers, the trial court dismissed the

trafficking allegations in the conspiracy charges, reducing those charges to conspiracy

to sell opium, conspiracy to deliver opium, and conspiracy to possess with intent to

sell or deliver opium. The trial court reviewed the jury instructions with Defendant’s

trial counsel, who agreed with the proposed instructions regarding each conspiracy

charge.

The jury returned a guilty verdict on all remaining charges, except that the

jury found the lesser included offense of knowingly (rather than intentionally)

maintaining a motor vehicle to possess and sell oxycodone on the dates of all three

transactions. Defendant gave oral notice of appeal.

II. Analysis

On appeal, Defendant challenges the sufficiency of the evidence for the charge

of felonious conspiracy to traffic opium by sale and delivery and possession of

oxycodone with intent to sell and deliver related to the events of the second controlled

buy on 13 September 2012. Defendant contends the State failed to present evidence,

aside from Adkins’s mere presence at the transaction on 13 September 2012, that

Defendant conspired with Adkins to traffic opium on that date.

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STATE V. GLISSON

Opinion of the Court

A. Appellate Jurisdiction

The State first contends that Defendant failed to preserve this issue for appeal

because her counsel argued before the trial court only that the State had presented

insufficient evidence of the weight of the pills involved in each transaction. We

disagree, based upon the record before us and our precedent holding that a general

motion to dismiss for insufficiency of the evidence preserves all issues regarding the

insufficiency of the evidence, even those issues not specifically argued before the trial

court. State v. Pender, ___ N.C. App. ___, 776 S.E.2d 352, 360 (2015) (holding that

although trial counsel presented a specific argument addressing only two elements of

two charges, the defendant’s general motion to dismiss “preserved his insufficient

evidence arguments with respect to all of his convictions,”); State v. Mueller, 184 N.C.

App. 553, 559, 647 S.E.2d 440, 446 (2007) (holding that although trial counsel

presented a specific argument addressing only five charges, the defendant’s general

motion to dismiss preserved arguments regarding fourteen charges on appeal).

Defendant’s motion to dismiss required the trial court to consider whether the

evidence was sufficient to support each element of each charged offense. State v.

Nabors, 365 N.C. 306, 312, 718 S.E.2d 623, 626 (2011). The trial court acknowledged

Defendant’s contention that the State “simply failed to offer sufficient evidence on

each and every count as to justify these cases to survive a motion to dismiss.” The

trial court referred to the motion as “global” and “prophylactic,” acknowledging on

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STATE V. GLISSON

Opinion of the Court

the record that Defendant’s motion was broader than the single oral argument

presented. In ruling on the motion to dismiss, the trial court stated that “the State

has offered sufficient evidence on each and every element of all the surviving charges

to justify these cases being advanced to the jury.” Counsel’s oral argument

challenging a single aspect of the evidence does not preclude Defendant from arguing

other insufficiencies in the evidence on appeal. So we will address the merits of

Defendant’s argument challenging the sufficiency of the evidence to support the

conspiracy charge.

B. Standard of Review

A trial court, on a motion to dismiss for insufficient evidence, “must determine

only whether there is substantial evidence of each essential element of the offense

charged and of the defendant being the perpetrator of the offense.” State v. Olson,

330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992) (citation omitted). “Whether evidence

presented constitutes substantial evidence is a question of law for the court” and is

reviewed de novo. State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991) (citation

omitted). “Substantial evidence is relevant evidence that a reasonable mind might

accept as adequate to support a conclusion.” Olson, 330 N.C. at 564, 411 S.E.2d at

595 (citation omitted). In reviewing the denial of a motion to dismiss for insufficiency

of the evidence, “we must view the evidence in the light most favorable to the State,

giving the State the benefit of all reasonable inferences.” State v. Benson, 331 N.C.

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STATE V. GLISSON

Opinion of the Court

537, 544, 417 S.E.2d 756, 761 (1992) (citation omitted). “Any contradictions or

discrepancies in the evidence are for the jury to resolve and do not warrant dismissal.”

Olson, 330 N.C. at 564, 411 S.E.2d at 595 (citation omitted).

C. Sufficiency of the Evidence

“A criminal conspiracy is an agreement between two or more people to do an

unlawful act or to do a lawful act in an unlawful way.” State v. Bell, 311 N.C. 131,

141, 316 S.E.2d 611, 617 (1984) (citation omitted). To prove the crime of conspiracy,

“the State need not prove an express agreement;” rather, “evidence tending to show

a mutual, implied understanding will suffice.” State v. Morgan, 329 N.C. 654, 658,

406 S.E.2d 833, 835 (1991) (citation omitted). “The existence of a conspiracy may be

established by direct or circumstantial evidence, although it is generally established

by a number of indefinite acts, each of which, standing alone, might have little weight,

but, taken collectively, they point unerringly to the existence of a conspiracy.” State

v. Worthington, 84 N.C. App. 150, 162, 352 S.E.2d 695, 703 (1987) (internal quotation

marks and citations omitted). “In ‘borderline’ or close cases, our courts have

consistently expressed a preference for submitting issues to the jury, both in reliance

on the common sense and fairness of the twelve and to avoid unnecessary appeals.”

State v. Hamilton, 77 N.C. App. 506, 512, 335 S.E.2d 506, 510 (1985) (citations

omitted).

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STATE V. GLISSON

Opinion of the Court

Here, the State presented evidence of indefinite acts amounting to substantial

evidence that Defendant conspired with Adkins to traffic opium on 13 September

2012. Defendant brought Adkins in her vehicle to the unfinished subdivision just as

she had brought Atkins with her for the initial transaction with Detective Corey, and

just as she would bring Adkins with her again for the third transaction in December.

The area of the exchange was one Defendant did not like and the sale took place at

or near dark. The drugs were maintained in the same vehicle as Adkins, and

Defendant exchanged the drugs and counted the money in front of him. From this, it

would be reasonable for the jury to infer that Adkins was present at Defendant’s

behest to provide safety and comfort to Defendant during the transaction. See State

v. Jackson, 103 N.C. App. 239, 244, 405 S.E.2d 354, 357 (1991) (“[I]t is reasonable for

the jury to infer that the defendant was present merely to ensure the safety of the

cocaine. This evidence, while circumstantial in nature . . . allowed the state to

withstand the defendant’s motion to dismiss [a conspiracy charge.]”). This evidence

was sufficient for the State to withstand Defendant’s motion to dismiss.

D. Single Conspiracy

Defendant argues that evidence of Adkins’ participation in the other two

transactions cannot be considered to support the separate conspiracy charge related

to the 13 September 2012 transaction, but instead establishes a single conspiracy to

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STATE V. GLISSON

Opinion of the Court

engage in three transactions, so that Defendant could be convicted of only one

conspiracy charge. We disagree.

“There is no simple test for determining whether single or multiple

conspiracies are involved: the essential question is the nature of the agreement or

agreements, . . . factors such as time intervals, participants, objectives, and number

of meetings all must be considered.” State v. Rozier, 69 N.C. App. 38, 52, 316 S.E.2d

893, 902 (1984). By electing to charge separate conspiracies, the State “must prove

not only the existence of at least two agreements but also that they were separate.”

Id. at 53, 316 S.E.2d at 902 (citation omitted). “Although the offense of conspiracy is

complete upon formation of the unlawful agreement, the offense continues until the

conspiracy comes to fruition or is abandoned.” State v. Medlin, 86 N.C. App. 114, 122,

357 S.E.2d 174, 179 (1987) (citation omitted). Ultimately, “[t]he question of whether

multiple agreements constitute a single conspiracy or multiple conspiracies is a

question of fact for the jury.” State v. Tirado, 358 N.C. 551, 577, 599 S.E.2d 515, 533

(2004) (citing Rozier, 69 N.C. App. at 54, 316 S.E.2d at 903).

Here, the evidence in the record, including the evidence from the other two

controlled buys, supports the existence of multiple separate conspiracies.

Approximately one month passed between the first and second controlled buys, and

approximately three months passed between the second and third controlled buys.

There was no evidence to suggest that Defendant planned the transactions as a

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STATE V. GLISSON

Opinion of the Court

series. Rather, the informant or Detective Corey initiated each transaction. The

evidence was sufficient to support a reasonable inference that Defendant and Atkins

planned each transaction in response to separate, individual requests by the buyers

and completed each plan upon the transfer of money for oxycodone. While the

objectives of each controlled buy may have been similar—to purchase oxycodone—the

agreed upon amount differed and none of the transactions contemplated future

transactions.

In light of the foregoing, we conclude that the evidence in the record supports

the charges of multiple conspiracies. We hold that Defendant has not met her burden

of establishing that the trial court erred in denying her motion to dismiss for

insufficiency of the evidence on the multiple conspiracy charges.

III. Conclusion

For the above mentioned reasons, we hold the trial court did not err by denying

Defendant’s motion to dismiss and submitting to the jury the charge of conspiracy to

traffic a Schedule II controlled substance as related to the 13 September 2012

transaction.

NO ERROR.

Chief Judge MCGEE and Judge DAVIS concur.

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