State v. Osborne

IN THE SUPREME COURT OF NORTH CAROLINA

No. 355PA18

Filed 16 August 2019

STATE OF NORTH CAROLINA

v.
SHELLEY ANNE OSBORNE

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 821 S.E.2d 268 (N.C. Ct. App. 2018), vacating in part and

finding no error in part in judgments entered on 21 February 2017 by Judge Edwin

G. Wilson, Jr. in Superior Court, Randolph County. Heard in the Supreme Court on

29 May 2019 in session in the State Capitol Building in the City of Raleigh.

Joshua H. Stein, Attorney General, by Derrick C. Mertz, Special Deputy
Attorney General, for the State-appellant.

Meghan Adelle Jones for defendant-appellee.

ERVIN, Justice.

The issue before the Court in this case is whether the Court of Appeals

erroneously determined that the trial court erred by denying defendant Shelley Anne

Osborne’s motion to dismiss a charge of possession of heroin for insufficiency of the

evidence. After careful consideration of the record in light of the applicable law, we

reverse the decision of the Court of Appeals and remand this case to the Court of
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Opinion of the Court

Appeals for consideration of defendant’s remaining challenge to the trial court’s

judgment.

I. Factual Background

A. Substantive Facts

On 17 November 2014, officers of the Archdale Police Department responded

to a call emanating from a local Days Inn hotel, in which they found defendant; a

second woman; and defendant’s two children, who appeared to be approximately four

and five years old. According to Officer Jeffrey Harold Allred, the Archdale Days Inn

is a place where “it’s easier for people that want to do those types of things –

prostitution, drugs – to – to get a room” given the hotel’s cheap rates. Officer Jeremy

Paul Flinchum testified that he had seen heroin, which he described as a grayish-tan

or white rock, in the past and that he had responded to eight to ten heroin overdose

calls during his law enforcement career.

After arriving at the Days Inn, Officer Flinchum found defendant, who was

“unresponsive,” “turning blue” around her face and lips, and having difficulty

breathing, in a hotel room bathroom. Upon regaining consciousness, defendant

“confirm[ed] to [Officer Flinchum] that she had ingested heroin.” According to Officer

Flinchum, investigating officers found “a syringe that had been thrown over the

balcony into the parking lot”; syringes in the hotel room’s refrigerator; two spoons,

which are objects “used in part of the process of making the rock into a fluid substance

to introduce to the body,” one of which had a “residue”; and “some heroin,” which took

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Opinion of the Court

a “rock form,” had “a white, grayish color,” and reacted positively when field-tested

for the presence of heroin. Similarly, Officer Allred testified, without objection, that

the substance seized from defendant’s hotel room appeared to be heroin and that

paraphernalia like that discovered in defendant’s hotel room was typically used to

ingest heroin. Officer Phillip Patton Love also testified, without objection, that,

following his entry into defendant’s hotel room, he collected “the rock heroin” that

was found at the scene and that syringes and burnt spoons are “normal stuff you see

when we . . . show up at overdoses that are dealing with heroin.” Officer Flinchum

conducted a second field test of the substance found in defendant’s hotel room in the

presence of the jury and testified, without objection, that the test was positive for the

presence of heroin.

B. Procedural History

On 14 September 2015, the Randolph County grand jury returned bills of

indictment charging defendant with possession of heroin and two counts of

misdemeanor child abuse. The charges against defendant came on for trial before the

trial court and a jury at the 20 February 2017 criminal session of the Superior Court,

Randolph County.

At the close of the State’s case, defendant unsuccessfully moved to dismiss the

heroin possession charge for insufficiency of the evidence, arguing, in part, that the

State was required, in accordance with this Court’s decision in State v. Ward, 364

N.C. 133, 147, 694 S.E.2d 738, 747 (2010), to establish the identity of the substance

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Opinion of the Court

that defendant allegedly possessed using a chemical test and that “a visual inspection

is not enough” to support a determination that the substance in question was heroin.

After resting without presenting any evidence, defendant renewed her dismissal

motion, which the trial court again denied.

On 21 February 2017, the jury returned verdicts finding defendant guilty as

charged. Based upon the jury’s verdicts, the trial court entered a judgment

sentencing defendant to a term of six to seventeen months imprisonment based upon

her conviction for possessing heroin and a second judgment sentencing defendant to

a consecutive term of sixty days imprisonment based upon her consolidated

convictions for misdemeanor child abuse. However, the trial court suspended

defendant’s sentences for a period of twenty-four months and placed defendant on

supervised probation subject to the usual terms and conditions of probation and the

special condition that defendant participate in drug treatment. Defendant noted an

appeal to the Court of Appeals from the trial court’s judgments.

In seeking relief from the trial court’s judgments before the Court of Appeals,

defendant contended, among other things, that the trial court had erred by denying

her motion to dismiss the heroin possession charge on the grounds that the State had

failed to present sufficient evidence to show that the substance that defendant

allegedly possessed was heroin.1 State v. Osborne, 821 S.E.2d 268, 270 (N.C. Ct. App.

1 In addition, defendant argued that the trial court had plainly erred by admitting
certain evidence identifying the substance located in the hotel room as heroin. As a result of

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Opinion of the Court

2018). In determining that “the State’s evidence did not establish beyond a

reasonable doubt that the seized substance was heroin,” id. at 272 (citing Ward, 364

N.C. at 147, 694 S.E.2d at 747), the Court of Appeals held that the State was required

under Ward to establish the identity of controlled substances using “some form of

scientifically valid chemical analysis” and that defendant could not be properly

convicted of heroin possession in the absence of such evidence, id. at 269-70 (quoting

Ward, 364 N.C. at 147, 694 S.E.2d at 747). Because defendant “did not identify the

seized substance as heroin” and, instead, “told the officers that she had ingested

heroin,” the Court of Appeals held that this case was distinguishable from cases

upholding controlled substance-related convictions based upon the defendant’s

admission to or presentation of evidence concerning the identity of the substance in

question. Id. at 271 (describing State v. Nabors, 365 N.C. 306, 718 S.E.2d 623 (2011),

and State v. Williams, 367 N.C. 64, 744 S.E.2d 125 (2013), as holding “that a defense

witness’s in-court testimony identifying a substance as cocaine was sufficient to

overcome a motion to dismiss even in the absence of forensic analysis,” and describing

State v. Ortiz-Zape, 367 N.C. 1, 743 S.E.2d 156 (2013), as holding “that an officer’s

testimony concerning the defendant’s out-of-court identification of the substance as

cocaine, combined with the officer’s own testimony that the substance appeared to be

cocaine, was sufficient to survive a motion to dismiss”). The Court of Appeals

its decision to vacate defendant’s conviction on sufficiency of the evidence grounds, the Court
of Appeals did not reach defendant’s evidentiary claim.

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Opinion of the Court

observed that it had attempted “to synthesize this line of cases into a coherent rule

of law” in State v. Bridges, 810 S.E.2d 365 (N.C. Ct. App.), disc. rev. denied, 371 N.C.

339, 813 S.E.2d 856 (2018), in which a police officer’s unobjected to testimony that

the defendant had made an extrajudicial admission that she had “a bagg[ie] of meth

hidden in her bra” and that he had located such a baggie in her bra sufficed to support

the denial of a motion to dismiss for insufficiency of the evidence. For this reason,

the Court of Appeals expressed its “reluctan[ce] to further expand the Bridges holding

to apply in cases where the defendant did not actually identify the seized substance”

given the likelihood that such a holding would “eliminate the need for scientifically

valid chemical analysis in many — perhaps most — drug cases” and undermine this

Court’s decision in Ward. Osborne, 821 S.E.2d at 271. Employing this logic,2 the

Court of Appeals held that, given the State’s concession that it had failed to present

evidence of a “scientifically valid chemical analysis identifying the seized substance

as heroin,” the State had not “establish[ed] beyond a reasonable doubt that the seized

substance was heroin” and that the trial court had erred by denying defendant’s

motion to dismiss for insufficiency of the evidence. Id. at 272 (citing Ward, 364 N.C.

at 147, 694 S.E.2d at 747). As a result, the Court of Appeals vacated the trial court’s

judgment stemming from defendant’s heroin possession conviction. Id. This Court

2 The Court of Appeals noted that “this issue is unsettled and may merit further
review in our Supreme Court.” Osborne, 821 S.E.2d at 270.

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Opinion of the Court

granted the State’s petition seeking discretionary review of the Court of Appeals’

decision.

II. Substantive Legal Analysis

In seeking to persuade us to reverse the Court of Appeals’ decision, the State

argues that, had the Court of Appeals viewed the admitted evidence in the light most

favorable to the State, as decisions such as State v. Mann, 355 N.C. 294, 301, 560

S.E.2d 776, 781 (2002), and State v. Robbins, 309 N.C. 771, 774–75, 309 S.E.2d 188,

190 (1983), require, it would have determined that the field “tests correctly and

chemically confirmed the substance’s identity as heroin.” In the State’s view, the

Court of Appeals “ignore[d] the field tests” and violated a “long standing maxim,”

articulated by this Court in State v. Vestal, 278 N.C. 561, 567, 180 S.E.2d 755, 760

(1971), that courts consider “incompetent evidence which has been admitted . . . as if

it were competent” in determining the sufficiency of the evidence to support a

defendant’s conviction. Relying upon State v. Lane, 365 N.C. 7, 27, 707 S.E.2d 210,

223 (2011), and State v. McCraw, 300 N.C. 610, 618-19, 268 S.E.2d 173, 178 (1980),

the State contends that defendant’s failure to object to the admission of the field tests

at trial rendered the results of those tests “properly considered by the jury” and

relieved the State of any need to show that the tests were “a sufficiently valid or

reliable method of identifying heroin.” According to the State, it “did not dispute

whether — let alone concede that — a chemical field test for the presence of heroin

was not a scientifically valid chemical analysis,” as it “had no need to do so.”

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Opinion of the Court

In addition, the State contends that, even if the field tests did not, standing

alone, suffice to identify the substance that defendant allegedly possessed, the

evidence, when viewed in its entirety, “was nevertheless sufficient to establish the

substance’s identity as heroin.” In support of this assertion, the State notes that

Ward addressed the issue of the admissibility of evidence concerning the identity of

a controlled substance rather than the sufficiency of the evidence to support a

conviction and is not, for that reason, relevant to the issue that is before the Court in

this case. On the contrary, the State asserts that the sufficiency of the evidence to

establish the identity of the substance that defendant allegedly possessed should be

decided based upon our decision in Nabors, 365 N.C. at 313, 718 S.E.2d at 627, in

which the testimony of one of the defendant’s witnesses identifying the substance

that the defendant allegedly possessed with the intent to sell or deliver as cocaine

sufficed to preclude allowance of a motion to dismiss for insufficiency of the evidence.

In the State’s view, defendant’s admission to the investigating officers that she had

ingested heroin, like the testimony at issue in Nabors, was sufficient to support

defendant’s heroin possession conviction. According to the State, “[s]o long as an oral

admission works as a proper method of identification,” “it should do so here” as well.

In seeking to persuade us to affirm the Court of Appeals’ decision, defendant

argues that, in order to convict a person of possessing a controlled substance, the

State must prove the identity of the substance in question by adducing evidence of a

scientifically valid chemical analysis performed by a person with expertise in

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Opinion of the Court

interpreting the results of such an analysis. In support of this argument, defendant

relies upon the fact that heroin is defined in N.C.G.S. § 90-89(2)(j) “in terms of its

chemical composition.” In defendant’s view, the use of a definition like that set out

in N.C.G.S. § 90-89(2)(j) implies, given the logic utilized in Ward, 364 N.C. at 143–44,

694 S.E.2d at 744, “the necessity of performing a chemical analysis to accurately

identify controlled substances before the criminal penalties in [Section] 90-95 are

imposed.” Similarly, defendant contends that State v. Llamas-Hernandez, 189 N.C.

App. 640, 652, 659 S.E.2d 79, 86 (2008) (Steelman, J., concurring, in part, and

dissenting, in part), rev’d per curiam for reasons stated in dissent, 363 N.C. 8, 673

S.E.2d 658 (2009), clearly indicates that expert testimony is required to establish that

the substance that the defendant had been charged with possessing is, in fact, a

controlled substance.

In addition, defendant directs our attention to State v. McKinney, 288 N.C. 113,

118–19, 215 S.E.2d 578, 582 (1975), and State v. Board, 296 N.C. 652, 658–59, 252

S.E.2d 803, 807 (1979), in which we reversed Court of Appeals decisions affirming

convictions for distributing THC and possessing and distributing MDA, respectively,

on the grounds that the State had failed to adduce sufficient evidence to establish the

identity of the substances in question. In defendant’s view, McKinney and Board

stand for the proposition that a chemical analysis is necessary in order to establish

the identity of a particular controlled substance. Similarly, defendant argues that

our decision in Nabors does not control the outcome in this case given that the

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Opinion of the Court

defendant in that case, who elicited evidence from one of his own witnesses that the

substance that he allegedly both possessed and sold and delivered was cocaine,

invited the error about which he sought to complain on appeal. In the same vein,

defendant argues that in Williams, 367 N.C. at 69, 744 S.E.2d at 125, and Ortiz-Zape,

367 N.C. at 13–14, 743 S.E.2d 156, both of which relied upon Nabors in upholding

controlled substance convictions on harmless error grounds, the record contained

evidence tending to show that the defendant had identified the relevant substance as

cocaine. In this case, on the other hand, defendant did not present any evidence

identifying the substance that she was charged with possessing as heroin.

In defendant’s view, the field tests performed by Officer Flinchum do not

constitute acceptable methods for proving the identity of a controlled substance. In

advancing this argument, defendant deduces that the tests in question were “color

test reagents for the preliminary identification of drugs” and directs our attention to

a law review article and news reports stating that “[s]uch drug tests are subject to no

regulation by a central agency” and “routinely produce false positives.” In addition,

defendant notes that the General Assembly has determined that evidence concerning

the “actual alcohol concentration result” derived from the performance of a portable

breath test cannot be utilized in determining whether reasonable grounds exist for

believing that an implied consent offense had been committed and argues that the

enactment of the relevant statutory provision indicates that the field tests utilized in

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Opinion of the Court

this case should not be deemed sufficient to support the denial of a motion to dismiss

for insufficiency of the evidence.

Finally, defendant argues that the other evidence upon which the State relied

in order to identify the substance that defendant allegedly possessed as heroin, such

as the testimony of Officers Flinchum, Allred, and Love that, in their opinion, the

substance in question appeared to them to be heroin on the basis of a visual

examination and defendant’s admission that she “had ingested heroin,” should not

suffice to identify the substance that defendant was charged with possessing as

heroin given that the testimony of the investigating officers did not rest upon

scientifically reliable chemical tests admitted using expert testimony and that, unlike

the situations at issue in Nabors and Williams, witnesses presented by defendant did

not identify the substance that was located in the hotel room and that formed the

basis of the drug possession charge as heroin. As a result, defendant urges us to

affirm the Court of Appeals’ decision to overturn her heroin possession conviction.

“Felonious possession of a controlled substance has two essential elements.

The substance must be possessed and the substance must be knowingly possessed.”

State v. Galaviz-Torres, 368 N.C. 44, 48, 772 S.E.2d 434, 437 (2015) (quoting State v.

Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985)). Put another way, in order

“[t]o obtain a conviction for possession of a controlled substance, the State bears the

burden of proving two elements beyond a reasonable doubt: (1) defendant possessed

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Opinion of the Court

the substance; and (2) the substance was a controlled substance.” State v. Harris,

361 N.C. 400, 403, 646 S.E.2d 526, 528 (2007) (citing N.C.G.S. § 90–95(a) (2005)).

“In ruling on a motion to dismiss, the trial court need determine only whether

there is substantial evidence of each essential element of the crime and that the

defendant is the perpetrator.” State v. Winkler, 368 N.C. 572, 574, 780 S.E.2d 824,

826 (2015) (quoting Mann, 355 N.C. at 301, 560 S.E.2d at 781). Substantial evidence

is the amount “necessary to persuade a rational juror to accept a conclusion.” Id. at

574, 780 S.E.2d at 826 (quoting Mann, 355 N.C. at 301, 560 S.E.2d at 781). In

evaluating the sufficiency of the evidence to support a criminal conviction, the

evidence must be considered “in the light most favorable to the State; the State is

entitled to every reasonable intendment and every reasonable inference to be drawn

therefrom.” Id. at 574, 780 S.E.2d at 826 (quoting State v. Powell, 299 N.C. 95, 99,

261 S.E.2d 114, 117 (1980)). In other words, if the record developed before the trial

court contains “substantial evidence, whether direct or circumstantial, or a

combination, ‘to support a finding that the offense charged has been committed and

that the defendant committed it, the case is for the jury and the motion to dismiss

should be denied.’ ” Id. at 575, 780 S.E.2d at 826 (quoting State v. Golphin, 352 N.C.

364, 458, 533 S.E.2d 168, 229 (2000)). “Moreover, both competent and incompetent

evidence that is favorable to the State must be considered by the trial court in ruling

on a defendant’s motion to dismiss.” State v. Nabors, 365 N.C. at 312, 718 S.E.2d at

627 (citing State v. Israel, 353 N.C. 211, 216, 539 S.E.2d 633, 637 (2000)).

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Opinion of the Court

In determining whether the evidence presented for the jury’s consideration

was sufficient to identify the substance located in defendant’s hotel room as heroin,

the Court of Appeals stated that “the question is not whether the State’s evidence

was strong, but whether that evidence ‘establish[ed] the identity of the controlled

substance beyond a reasonable doubt,’ ” Osborne, 821 S.E.2d at 271 (alteration in

original) (quoting Ward, 364 N.C. at 147, 694 S.E.2d at 747), and concluded that,

“[a]pplying Ward here, the State’s evidence did not establish beyond a reasonable

doubt that the seized substance was heroin,”3 id. at 272 (citing Ward, 364 N.C. at 147,

3 The statement from the Court of Appeals’ decision quoted in the text can be read as
suggesting, perhaps inadvertently, that an appellate court reviewing a sufficiency of the
evidence claim is required to determine both that the record contains evidence tending to
show the existence of each element of the charged offense and that the jury could reasonably
find the existence of each element of the offense charged beyond a reasonable doubt based
upon the evidence in question. Our sufficiency of the evidence jurisprudence does not call for
such a two-step inquiry, which tends to suggest the appropriateness of some sort of appellate
credibility determination rather than leaving all such credibility determinations to the jury.
See, e.g., State v. Hyatt, 355 N.C. 642, 665–66, 566 S.E.2d 61, 76–77 (2002) (rejecting the
defendant’s argument that the testimony of witnesses who “were felons with significant
criminal histories,” whose “respective accounts of the events at trial [both] conflicted with
earlier statements to police” and “were self-serving,” did not constitute sufficient evidence to
support defendant’s convictions for first-degree murder, robbery with a dangerous weapon,
and first-degree kidnapping on the grounds that the “[d]efendant’s proposition would
occasion the fall of a long-standing principle in our jurisprudence that we are unprepared to
abandon: that it is the province of the jury, not the court, to assess and determine witness
credibility” (first citing State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001); then
citing State v. Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154 (1991); then citing State v. Orr,
260 N.C. 177, 179, 132 S.E.2d 334, 336 (1963); then citing State v. Wood, 235 N.C. 636, 637-
38, 70 S.E.2d 665, 667 (1952); then citing State v. Bowman, 232 N.C. 374, 376, 61 S.E.2d 107,
108–09 (1950); and then citing State v. McLeod, 196 N.C. 542, 544–45, 146 S.E. 409, 410
(1929))); State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255–56 (2002) (stating that,
in ruling upon a motion to dismiss for insufficiency of the evidence “[t]he trial court does not
weigh the evidence, consider evidence unfavorable to the State, or determine any witness’
credibility”) (quoting Parker, 354 N.C. at 278, 553 S.E.2d at 894)); State v. Barnes, 334 N.C.
67, 75-76, 430 S.E.2d 914, 919 (1993) (stating that, “[o]nce the court decides that a reasonable
inference of defendant’s guilt may be drawn from the circumstances, then ‘ “it is for the jury

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694 S.E.2d at 747)). In essence, the Court of Appeals accepted the validity of

defendant’s argument that, according to Ward, the only evidence that can suffice to

identify the substance that a defendant is charged with possessing, manufacturing,

selling, or delivering as a controlled substance for sufficiency of the evidence purposes

is a scientifically valid chemical analysis performed by a person with expertise in

interpreting the results produced by such an analysis. The State, on the other hand,

argues that the Court of Appeals and defendant have misapprehended the nature of

our decision in Ward given that it “only involved admissibility not sufficiency.” As a

result, it is necessary for us to analyze the meaning and reach of our decision in Ward

to properly decide this case.

The sole issue addressed in Ward was “whether the trial court abused its

discretion by permitting [an analyst] to give expert opinion testimony identifying

certain pills based solely on a visual inspection methodology.” 364 N.C. at 139, 694

S.E.2d at 742. In determining that the trial court had abused its discretion by

permitting the expert to identify the controlled substance using such a methodology,

to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable
doubt that the defendant is actually guilty” ’ ” (second alteration in original) (emphasis
omitted) (quoting State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978))); State v.
McAvoy, 331 N.C. 583, 589, 417 S.E.2d 489, 493–94 (1992) (stating that, “[i]f there is
substantial evidence of each element of the offense charged, or any lesser included offenses,
the trial court must deny the motion to dismiss as to those charges supported by substantial
evidence and submit them to the jury for its consideration; the weight and credibility of such
evidence is a question reserved for the jury” (citing State v. Vause, 328 N.C. 231, 236–37, 400
S.E.2d 57, 61 (1991))). Instead, as long as the record contains evidence which tends to show
the existence of each element of the charged offense, a defendant’s dismissal motion should
be denied.

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id. at 148, 694 S.E.2d at 747–48, the Court relied upon its decision in Howerton v.

Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004), which “established

three steps ‘for evaluating the admissibility of expert testimony’ ” pursuant to

N.C.G.S. § 8C-1, Rule 702, with those steps including whether “the expert’s proffered

method of proof [is] sufficiently reliable as an area for expert testimony,” Ward, 364

N.C. at 140, 694 S.E.2d at 742 (quoting Howerton, 358 N.C. at 458, 597 S.E.2d at

686). In determining that the visual identification evidence at issue in Ward should

not have been admitted for the jury’s consideration, 364 N.C. at 142, 694 S.E.2d at

743, we noted that “[t]he proponent of the expert witness, in this case the State, has

‘the burden of tendering the qualifications of the expert’ and demonstrating the

propriety of the testimony under this three-step approach,” id. at 140, 694 S.E.2d at

742 (quoting Crocker v. Roethling, 363 N.C. 140, 144, 675 S.E.2d 625, 629 (2009)

(plurality opinion)). The Court determined that the challenged evidence should not

have been admitted on the grounds that “the visual inspection methodology . . .

proffered as an area for expert testimony is not sufficiently reliable to identify the

substances at issue,” id. at 142, 694 S.E.2d at 743, given (1) the absence of significant

evidence “either implying that identification of controlled substances by mere visual

inspection is scientifically reliable or suggesting that [the analyst’s] particular

methodology was uniquely reliable” and (2) the failure of the State’s expert witness

to provide “any scientific data or demonstration of the reliability of his methodology,”

id. at 144, 694 S.E.2d at 745. As we noted in stating that “[t]his holding is limited to

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North Carolina Rule of Evidence 702,” id. at 147, 694 S.E.2d at 747, our decision in

Ward focused solely upon the admissibility of the challenged evidence and did not

address the sufficiency of the evidence to support the defendant’s convictions in that

case.

We recognize that, even though Ward did not address the sufficiency of the

challenged evidence to establish the identity of the substances at issue in that case,

the opinion in Ward has been deemed to be relevant to such inquiry in a number of

decisions, including the Court of Appeals’ decision in this case. See, e.g., Bridges, 810

S.E.2d at 366, 367, 370 (holding that the trial court did not err by denying a motion

to dismiss a charge of possession of methamphetamine on the grounds that the

testimony of a law enforcement officer that the defendant had told the officer that

“she had a baggy of meth hidden in her bra” coupled with evidence of the “crystal-like

substance found in [d]efendant’s bra,” taken together, constituted “proof sufficient to

establish the presence of the first element” of the possession charge pursuant to

Ward); State v. James, 240 N.C. App. 456, 459, 770 S.E.2d 736, 738–39 (2015)

(determining, after noting that the defendant did not make “the sufficiency of the

sample size a basis for [his] motion to dismiss,” that, had the issue been properly

preserved for purposes of appellate review, a chemical analysis of one pill along with

visual examination of the remaining pills sufficed to permit a jury “to conclude that

defendant possessed and transported 28 grams or more of a Schedule II controlled

substance”); see also State v. Blackwell, 207 N.C. App. 255, 259, 699 S.E.2d 474, 476–

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77 (2010) (noting, in determining whether the admission of a laboratory report

constituted plain error, that, “[w]ithout the erroneous admission of the laboratory

reports,” “the case against defendant would have been subject to dismissal at the close

of the State’s evidence” given that “the identification of the substance as cocaine was

a fundamental part of the State’s case” according to Ward). The confusion reflected

in these decisions concerning the proper manner in which Ward should be understood

may have arisen from our statement that:

We acknowledge that controlled substances come in
many forms and that we are unable to foresee every
possible scenario that may arise during a criminal
prosecution. Nevertheless, the burden is on the State to
establish the identity of any alleged controlled substance
that is the basis of the prosecution. Unless the State
establishes before the trial court that another method of
identification is sufficient to establish the identity of the
controlled substance beyond a reasonable doubt, some form
of scientifically valid chemical analysis is required. This
holding is limited to North Carolina Rule of Evidence 702.

Ward, 364 N.C. at 147, 694 S.E.2d at 747; see Osborne, 821 S.E.2d at 270. Although

the quoted language has been cited in addressing sufficiency of the evidence issues in

a number of cases, including those referenced above, the passage in question

explicitly states that the sole issue before the Court in Ward involved the issue of

admissibility rather than the issue of sufficiency. Thus, for purposes of examining

the sufficiency of the evidence to support a criminal conviction, it simply does not

matter whether some or all of the evidence contained in the record should not have

been admitted; instead, when evaluating the sufficiency of the evidence, all of the

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evidence, regardless of its admissibility, must be considered in determining the

validity of the conviction in question. State v. Vestal, 278 N.C. at 567, 180 S.E.2d at

760 (stating that, “[i]n determining such motion, incompetent evidence which has

been admitted must be considered as if it were competent” (first citing State v. Cutler,

271 N.C. 379, 382-83, 156 S.E.2d 679, 681 (1967) (stating that “[a]ll of the evidence

actually admitted, whether competent or incompetent, including that offered by the

defendant, if any, which is favorable to the State, must be taken into account and so

considered by the court in ruling upon the motion [for nonsuit in a criminal action]”);

and then citing State v. Virgil, 263 N.C. 73, 75, 138 S.E.2d 777, 778 (1964) (same)).

For that reason, a reviewing court errs to the extent that it determines whether the

evidence suffices to support a defendant’s criminal conviction by ascertaining

whether the evidence relevant to the issue of the defendant’s guilt should or should

not have been admitted and then evaluating whether the admissible evidence,

examined without reference to the allegedly inadmissible evidence that the trial court

allowed the jury to hear, sufficed to support the defendant’s conviction.

Additional confusion about the relevance of the principles enunciated in Ward

to sufficiency of the evidence issues may stem from our decision in Llamas-

Hernandez, 363 N.C. at 8, 673 S.E.2d at 658, in which this Court, in a per curiam

opinion, reversed the Court of Appeals’ decision “[f]or the reasons stated in the

dissenting opinion.” According to the dissenting opinion that this Court adopted in

Llamas-Hernandez, the trial court erred by admitting lay opinion testimony

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 STATE V. OSBORNE

Opinion of the Court

concerning the identity of the controlled substance in which the defendant allegedly

trafficked. After making this determination, the dissenting judge stated that “expert

testimony [is] required to establish that a substance is in fact a controlled substance,”

189 N.C. App. at 652, 659 S.E.2d at 86 (Steelman, J., concurring, in part, and

dissenting, in part), and that, “[w]ithout [the lay opinion] testimony, there was no

evidence before the jury as to the nature of the white powder,” so that “[t]he trial

court erred in denying defendant’s motion to dismiss the Class G trafficking offense,”

id. at 654–55, 659 S.E.2d at 88. Aside from the fact that the dissenting judge did not

explain in detail why the appropriate remedy for the erroneous admission of the

visual identification testimony would be a determination that the evidence did not

suffice to support the defendant’s conviction rather than a new trial and the fact that

the issue actually in dispute between the parties related to admissibility rather than

sufficiency, the remedial result reached in Llamas-Hernandez is inconsistent with

numerous decisions of this Court, such as Nabors, Vestal, Cutler, and Virgil.4 As a

4 To be absolutely clear, the appropriate remedy for prejudicial error resulting from
the admission of evidence that should not have been admitted has traditionally been for the
defendant to receive a new trial rather than for the charges that had been lodged against
that defendant to be dismissed for insufficiency of the evidence. See, e.g., State v. Craven,
367 N.C. 51, 58, 744 S.E.2d 458, 462 (2013) (determining that the Court of Appeals, by
vacating a conviction on the grounds that evidence had been erroneously admitted and the
error was prejudicial, had ordered a remedy that was “erroneous as a matter of law” and that
the Court of Appeals should, instead, “have ordered a new trial” (citing State v. Littlejohn,
264 N.C. 571, 574, 142 S.E.2d 132, 134–35 (1965))). For that reason, the sole remedy
available to a criminal defendant faced with an attempt on the part of the State to elicit
evidence identifying a controlled substance that fails to satisfy the principles enunciated in
Ward is to object to the admission of that evidence and to challenge any decision on the part
of the trial court to admit that evidence as part of a bid for a new trial on appeal.

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 STATE V. OSBORNE

Opinion of the Court

result, to the extent that Llamas-Hernandez suggests that the result reached by the

Court of Appeals in this case was the correct one, that portion of our decision in

Llamas-Hernandez is disapproved.

In view of the fact that the absence of an admissible chemical analysis of the

substance that defendant allegedly possessed does not necessitate a determination

that the record evidence failed to support the jury’s decision to convict defendant of

possessing heroin, the only thing that remains for us to do in order to decide this case

is to determine whether, when analyzed in accordance with the applicable legal

standard, the evidence adduced at defendant’s trial sufficed to support her conviction.

A careful review of the evidence admitted at defendant’s trial establishes that

defendant told an investigating officer that she had ingested heroin, that several

investigating officers identified the substance seized in the defendant’s hotel room as

heroin, and that the substance that defendant was charged with possessing field-

tested positive for heroin on two different occasions. Assuming, without in any way

deciding, that some of this evidence might have been subject to exclusion if defendant

had objected to its admission, no such objection was lodged. Thus, the record, when

considered in its entirety and without regard to whether specific items of evidence

found in the record were or were not admissible, contains ample evidence tending to

show that the substance that defendant allegedly possessed was heroin.5 As a result,

5 The Court of Appeals and defendant have both emphasized that in this case, unlike
Nabors, Williams, and Ortiz-Zape, the evidence upon which the State relied in arguing that
the record contained adequate support for the jury’s finding of defendant’s guilt did not

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 STATE V. OSBORNE

Opinion of the Court

the Court of Appeals erred by holding that the trial court erroneously denied

defendant’s motion to dismiss the heroin possession charge for insufficiency of the

evidence.

III. Conclusion

Thus, for the reasons set forth above, we hold that the Court of Appeals erred

by determining that the trial court had erroneously denied defendant’s motion to

dismiss the possession of heroin charge that had been lodged against her for

insufficiency of the evidence. As a result, the Court of Appeals’ decision in this case

is reversed and this case is remanded to the Court of Appeals for consideration of

defendant’s remaining challenge to the trial court’s judgment.

REVERSED AND REMANDED.

consist of either an admission by defendant or testimony elicited by defendant. However,
that fact has no bearing upon the proper resolution of the sufficiency of the evidence issue in
this case. Although an admission by defendant or one of her witnesses might be given greater
weight than other evidence during the course of a jury’s deliberations, the source from which
a particular item of evidence originates is irrelevant to a proper sufficiency of the evidence
determination, which focuses upon whether there is any evidence of any kind tending to
support a finding of a defendant’s guilt rather than upon the form that the evidence takes.
See, e.g., State v. Lowery, 309 N.C. 763, 766, 309 S.E.2d 232, 236 (1983) (stating that “[t]he
trial court in considering a motion to dismiss is concerned only with the sufficiency of the
evidence to carry the case to the jury; it is not concerned with the weight of the evidence”
(citing State v. McNeil, 280 N.C. 159, 162, 185 S.E.2d 156, 157 (1971))). Similarly, the
existence of questions about the reliability of the field test results that the jury was allowed,
without objection, to hear in this case goes to the admissibility of that evidence rather than
to whether that evidence is relevant in determining whether the evidence sufficed to support
defendant’s conviction.

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Justice EARLS concurring.

I concur with the analysis in the majority opinion, but write separately to note

a threshold matter of immunity and jurisdiction which I would have considered sua

sponte. On 9 April 2013 Governor Pat McCrory signed into law Session Law 2013-

23, titled, in part, “An Act to Provide Limited Immunity From Prosecution for (1)

Certain Drug-Related Offenses Committed by an Individual Who Seeks Medical

Assistance for a Person Experiencing a Drug-Related Overdose and (2) Certain Drug-

Related Offenses Committed by an Individual Experiencing a Drug-Related Overdose

and In Need of Medical Assistance.” 2013 N.C. Sess. Laws 72, 72–73 (codified as

amended at N.C.G.S. §§ 90-96.2 & 90-106.2) (2019). Passed with overwhelming

majorities in the state House and Senate, see

https://www.ncleg.gov/BillLookUp/2013/S20, the bill was referred to as the “Good

Samaritan Law/Naloxone Access Law” and went into effect immediately. S.L. 2013-

23, § 4, 2013 N.C. Sess. Laws at 73.

In Section 1, the law amended Article 5 of Chapter 90 of the General Statutes

to add a new section titled “Drug-related overdose treatment; limited immunity.” S.L.

2013-23, § 1, 2013 N.C. Sess. Laws at 72. The statute provided that:

A person who experiences a drug-related overdose and is in
need of medical assistance shall not be prosecuted for . . .
(iii) a felony violation of G.S. 90-95(a)(3) possession of less
than one gram of heroin . . . if the evidence for prosecution
under those sections was obtained as a result of the drug-
related overdose and need for medical assistance.

Id.
 STATE V. OSBORNE

Earls, J., concurring

This law was in effect on 17 November 2014 when police received a 911 call

that there was an overdose at a Days Inn in Archdale. Under the terms of that

statute,6 neither Shelley Osborne nor anyone who, in good faith, was seeking medical

assistance for her that day could be prosecuted for possession of less than one gram

of heroin. I concur that, to the extent we are only examining the sufficiency of the

evidence here, without regard to the question of the admissibility of any of the

evidence, all of the evidence contained in the record taken in the light most favorable

to the State was sufficient to prove that the substance possessed by Shelley Osborne

was heroin. And I concur that the case should be remanded to the Court of Appeals

for consideration of defendant’s remaining challenge to the trial court’s judgment,

which was the argument that, “[i]n the alternative, the trial court plainly erred by

admitting testimony identifying the substance as heroin, by allowing an officer to

conduct a field test in front of the jury, and by admitting testimony that the result of

the field test indicated heroin.” The Court of Appeals should also address on remand

the question of the application of N.C.G.S. § 90-96.2 to this case.

North Carolina’s Good Samaritan/Naloxone Access Law was passed at a time

when state public health officials had reported a 300 percent increase in the number

of overdose deaths in North Carolina in just over a decade, from 297 in 1999 to 1,140

6 N.C.G.S. § 90-96.2 was further amended in 2015; the new version applies to offenses
committed on or after 1 August 2015. Act of June 10, 2015, S.L. 2015-94, §§ 1, 4, 2015 N.C.
Sess. Laws 191, 191-92, 194.

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 STATE V. OSBORNE

Earls, J., concurring

in 2011. See Injury and Violence Prevention Branch, North Carolina Division of

Public Health, Prescription & Drug Overdoses, (2013),

http://injuryfreenc.ncdhhs.gov/About/PoisoningOverdoseFactSheet2013.pdf. The

General Assembly made the decision that encouraging individuals suffering from an

overdose, and those Good Samaritans who might be with them, to seek medical help

to save lives was more important than prosecuting those individuals for possession of

less than one gram of heroin.7

Ultimately, the question I would start with in deciding this case is whether the

Good Samaritan/Naloxone Access Law’s immunity is waived if not affirmatively

asserted, or whether, like subject matter jurisdiction, it can be raised at any time. Cf.

State v. Sturdivant, 304 N.C. 293, 307–08, 283 S.E.2d 719, 729–30 (1981) (noting that

an argument that the trial court lacked subject matter jurisdiction may be raised at

any time after a verdict); Willowmere Cmty. Ass’n v. City of Charlotte, 370 N.C. 553,

561, 809 S.E.2d 558, 563–64 (2018) (holding that since standing is a necessary

prerequisite to a court’s subject matter jurisdiction, it can be challenged at “any stage

of the proceedings, even after judgment” (quoting In re T.R.P., 360 N.C. 588, 595, 636

The original statute also provided that “[n]othing in this section shall be construed
7

to bar the admissibility of any evidence obtained in connection with the investigation and
prosecution of other crimes committed by a person who otherwise qualified for limited
immunity under this section.” S.L. 2013-23, § 1 (d), 2013 N.C. Sess. Laws at 72. In this case,
defendant was also convicted of two counts of misdemeanor child abuse based on the fact that
her two children under the age of sixteen were in the hotel room at the time she overdosed.
The statute does not provide immunity from prosecution for those offenses and they are not
at issue here.

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 STATE V. OSBORNE

Earls, J., concurring

S.E.2d 787, 793 (2006))). The court always has the obligation to inquire into and be

certain of its jurisdiction. See generally Lemmerman v. A.T. Williams Oil Co., 318

N.C. 577, 580, 350 S.E.2d 83, 85–86 (1986) (“Every court necessarily has the inherent

judicial power to inquire into, hear and determine questions of its own jurisdiction,

whether of law or fact, the decision of which is necessary to determine the questions

of its jurisdiction.” (quoting Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808

(1964))); see also N.C.G.S. § 1A-1, Rule 12(h)(3) (“Whenever it appears by suggestion

of the parties or otherwise that the court lacks jurisdiction of the subject matter, the

court shall dismiss the action.” (emphasis added)); Catawba Cty. v. Loggins, 370 N.C.

83, 100, 804 S.E.2d 474, 486 (2017) (Martin, C.J., concurring in the result only)

(“Courts always have jurisdiction to determine subject-matter jurisdiction, but they

do not always have—in fact, they usually do not have—the power to determine other

matters unless asked to do so by a party.”). In Loggins, the Court explained that

where the legislature has established the court’s jurisdiction by state statute, subject

to certain limitations, the court has no jurisdiction to exceed those limits, stating:

Jurisdiction is “[t]he legal power and authority of a court
to make a decision that binds the parties to any matter
properly brought before it.” The court must have personal
jurisdiction and, relevant here, subject matter jurisdiction
“or ‘[j]urisdiction over the nature of the case and the type
of relief sought,’ in order to decide a case.” “The legislature,
within constitutional limitations, can fix and circumscribe
the jurisdiction of the courts of this State.” “Where
jurisdiction is statutory and the Legislature requires the
Court to exercise its jurisdiction in a certain manner, to
follow a certain procedure, or otherwise subjects the Court

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 STATE V. OSBORNE

Earls, J., concurring

to certain limitations, an act of the Court beyond these
limits is in excess of its jurisdiction.”

370 N.C. at 88, 804 S.E.2d at 478 (alterations in original) (first quoting T.R.P., 360

N.C. at 590, 636 S.E.2d at 789–90; then quoting T.R.P. at 590, 636 S.E.2d at 790;

then quoting Bullington v. Angel, 220 N.C. 18, 20, 16 S.E.2d 411, 412 (1941); then

quoting Eudy v. Eudy, 288 N.C. 71, 75, 215 S.E.2d 782, 785 (1975), overruled on other

grounds by Quick v. Quick, 305 N.C. 446, 457–58, 290 S.E.2d 653, 661 (1982)). In an

analogous situation, where the issue was whether the court had jurisdiction to

prosecute the defendant because of a factual dispute over where the crime occurred,

this Court acknowledged that when a defendant challenges the jurisdiction of the

court,

the defendant is contesting the very power of this State to
try him. We are of the view that a question as basic as
jurisdiction is not an “independent, distinct, substantive
matter of exemption, immunity or defense” and ought not
to be regarded as an affirmative defense on which the
defendant must bear the burden of proof. Rather,
jurisdiction is a matter which, when contested, should be
proven by the prosecution as a prerequisite to the authority
of the court to enter judgment.

State v. Batdorf, 293 N.C. 486, 493, 238 S.E.2d 497, 502 (1977) (quoting State v. Davis,

214 N.C. 787, 793, 1 S.E.2d 104, 108 (1939)); see also State v. Covington, 267 N.C.

292, 295–96, 148 S.E.2d 138, 141–42 (1966) (holding that where lack of jurisdiction

appears on the face of the record, this Court, ex mero motu, arrests the judgement).

Thus, it is appropriate for the Court of Appeals on remand to address whether

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 STATE V. OSBORNE

Earls, J., concurring

the Good Samaritan/Naloxone Law is a limit on the court’s jurisdiction to prosecute

defendant in this case, by directing that a person who experiences a drug-related

overdose and is in need of medical assistance “shall not be prosecuted” for possession

of less than one gram of cocaine, or, more generally, if not purely jurisdictional,

whether it is an issue that can be waived.

Certainly the first place to begin is the language of the statute itself. If

unambiguous, “there is no room for judicial construction.” Lee v. Gore, 365 N.C. 227,

230, 717 S.E.2d 356, 358 (2011) (citing Walker v. Bd. of Trs. Of N.C. Local Gov’tal

Emps.’ Ret. Sys., 348 N.C. 63, 65–66, 499 S.E.2d 429, 430–31 (1998)); see also State v.

Ellison, 366 N.C. 439, 443, 738 S.E.2d 161, 164 (2013) (applying opium trafficking

statute’s clear and unambiguous language that prohibits trafficking in mixtures

containing opium derivatives); Burgess v. Your House of Raleigh, Inc., 326 N.C. 205,

209, 388 S.E.2d 134, 136 (1990) (noting that legislative purpose is first determined

from the plain words of the statute). The law uses the term “shall not” which is

mandatory, not permissive. State v. Johnson, 298 N.C. 355, 361, 259 S.E.2d 752, 757

(1979) (citing Black’s Law Dictionary 1541 (4th rev. ed. 1968)) (“As used in statutes,

the word ‘shall’ is generally imperative or mandatory.”). If a person in defendant’s

circumstances “shall not” be prosecuted, there is no room for discretion to prosecute

them.

It is also instructive that the statute does not say “it shall be a defense to the

crime of possession of less than one gram of heroin that . . . .” The legislature is aware

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 STATE V. OSBORNE

Earls, J., concurring

of the various defenses available in criminal law, and, indeed, has passed statutes

requiring a defendant to give notice before trial if they intend to assert certain

defenses. See N.C.G.S. § 15A-905(c); see also State v. Rankin, 371 N.C. 885, 893, 821

S.E.2d 787, 794 (2018) (“If the General Assembly wanted to enable a trash collector

to be criminally charged for doing his or her job and forced to demonstrate his or her

innocence by proving an affirmative defense at trial, it could have indicated as much

in the statute.”). “It is always presumed that the legislature acted with care and

deliberation and with full knowledge of prior and existing law.” State v. Benton, 276

N.C. 641, 658, 174 S.E.2d 793, 804 (1970) (citations omitted). The fact that the

statute at issue in this case is not framed as a defense to a criminal prosecution but

rather a grant of immunity is apparent from the plain language of the statute.

The goal of statutory construction is to ensure that the purpose of the

legislature is accomplished. State ex rel. Hunt v. N.C. Reinsurance Facil., 302 N.C.

274, 288, 275 S.E.2d 399, 405 (1981) (citing In re Dillingham, 257 N.C. 684, 694, 127

S.E.2d 584, 591 (1962)). This Court has observed that “[c]ourts also ascertain

legislative intent from the policy objectives behind a statute’s passage ‘and the

consequences which would follow from a construction one way or another.’ ” Elec.

Supply Co. of Durham v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294

(1991) (quoting Campbell v. Church, 298 N.C. 476, 484, 259 S.E.2d 558, 564 (1979)).

The legislature’s intent in passing N.C.G.S. § 90-96.2 was to ensure that victims of

drug overdoses, and those who may be with them or come across them, do not refrain

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 STATE V. OSBORNE

Earls, J., concurring

from seeking medical attention out of fear of criminal prosecution. In light of the

opioid overdose epidemic in this state, the legislature enacted a policy to sacrifice

prosecutions for possession of small amounts of drugs in order to save lives. Treating

section N.C.G.S. 90-96.2(c) as anything other than a jurisdictional requirement that

must be established by the State would severely undercut that policy.

As a Pennsylvania intermediate appellate court addressing that state’s version

of an overdose immunity statute noted:

Moreover, the Legislature intended for prosecutors and
police to refrain from filing charges when sorting through
the aftermath of the unfortunately all-too-common
overdose. The statute discourages the authorities from
commencing the criminal justice process, i.e. by placing a
limitation upon the charging power, to provide more
incentive for reporters to call. . . . It would significantly
undercut the statute’s goal to conclude, as the
Commonwealth urges, that the Act merely provides a
defense, thereby requiring an overdose victim or a reporter
to litigate the issue of immunity. We find that the statute
clearly contemplates that a large number of these cases
will never reach the courtroom halls; hence, the prohibition
against charging a person.

Commonwealth v. Markun, 185 A.3d 1026, 1035–36 (Pa. Super. Ct. 2018).

Pennsylvania’s statute contains conspicuous differences from the original N.C.G.S.

§ 90-96.2 and explicitly places a burden on the defendant to establish certain criteria

in order to receive its particular protections, nevertheless the Pennsylvania court

concluded that the statute confers immunity, similar to sovereign immunity, that is

not waived if raised for the first time on appeal, and creates a duty of the prosecution

not to bring charges if the Act applies to the defendant’s circumstances. Id. at 1031–

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 STATE V. OSBORNE

Earls, J., concurring

40. The application of this immunity in North Carolina’s Good Samaritan/Naloxone

Access law is not something that was tacitly waived by defendant here, but rather

the State was required to prove that the immunity did not apply in order to proceed

with prosecution for this particular offense.

Beyond the question of whether the limited immunity conferred by this statute

is intended to be immunity from prosecution or a defense to a prosecution, there

further remains the question of whether the law actually applies to Ms. Osborne.

There is no dispute in the record that law enforcement personnel were called to

provide aid to an overdose victim. Arriving first, Officer Flinchem found defendant

unconscious, unresponsive, and turning blue, apparently from a heroin overdose.

After Officer Flinchem insured that it was safe for EMS to enter, EMS entered the

room and was able to revive defendant, who confirmed that she had ingested heroin.

Officer Flinchem and two other officers who also responded to the call found drug

paraphernalia and a “little piece of heroin.”

The evidence for prosecution was obtained as a result of the need for medical

assistance. Defendant was indicted, tried and convicted of a felony violation of

N.C.G.S. § 90-95(a)(3), one of the statutes referenced in the Good

Samaritan/Naloxone Access Law. What arguably is unclear is whether the amount

of heroin at issue was less than one gram, as the only evidence in the record

concerning the amount is that it was a “little piece of heroin.” Given the language

and intent behind N.C.G.S. § 90-96.2(c), the State in these circumstances bears the

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Earls, J., concurring

burden of establishing that the amount was one gram or more. Although the weight

of the substance is not an element of the offense of possession, the immunity statute

means that the weight of the substance needs to be known where all the other

elements of immunity are present. That is the only way to effectuate the intent of

the legislature that people who call police or medical personnel for treatment because

they are experiencing a drug-related overdose shall not be prosecuted for possessing

less than one gram of the drug.

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