State v. Teague

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-600

No. COA21-10

Filed 1 November 2022

Wake County, Nos. 18 CRS 205570–71, 205588

STATE OF NORTH CAROLINA

v.

JOSEPH EDWARDS TEAGUE, III

Appeal by defendant from judgments entered 31 January 2020 by Judge

Thomas H. Lock in Wake County Superior Court. Heard in the Court of Appeals 1

December 2021.

Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J.
Uicker, for the State.

Hynson Law, PLLC, by Warren D. Hynson, for defendant-appellant.

ZACHARY, Judge.

¶1 Defendant Joseph Edwards Teague, III, appeals from judgments entered upon

a jury’s verdicts finding him guilty of conspiracy to traffic marijuana by

transportation, possession with intent to sell or deliver marijuana, felony possession

of marijuana, felony keeping or maintaining a storage unit for keeping or selling

controlled substances, felony keeping or maintaining a dwelling for keeping or selling

controlled substances, and possession with intent to sell or deliver delta-9-
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tetrahydrocannabinol (“THC”). After careful review, we affirm the trial court’s denial

of Defendant’s motion to suppress, and conclude that Defendant received a trial free

from prejudicial error.

I. Background

¶2 On 21 March 2018, Investigator Selburn Menzie of the Wake County Sheriff’s

Office High-Intensity Drug Trafficking Areas (“HIDTA”) Task Force was working at

a FedEx facility as part of his routine parcel interdiction duty. On the conveyor belt,

he observed a package (the “target package”) with “all the seams . . . taped,” which he

later testified was “one of many indicators” that a parcel may contain illegal drugs.

The target package named “Marcus Rawls” as its sender and “Joe Teague” as its

intended recipient. The shipping label indicated that the target package had been

shipped from California and listed “(888) 888 8888” as the telephone number for the

addressee, “Joe Teague” in Raleigh, North Carolina. In his experience and training

as a member of the HIDTA Task Force, Investigator Menzie recognized these as

additional indicators of possible drug smuggling.

¶3 Investigator Menzie removed the target package from the belt and ran the

sender and recipient information from the shipping label through two law

enforcement databases. From these databases, Investigator Menzie determined that

the phone number given for the target package’s sender “Marcus Rawls” did not

match the phone number for the listed shipping address, and he confirmed that the
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“(888) 888 8888” phone number provided for its recipient “Joe Teague” did not exist.

Investigator Menzie also noticed that the target package had been sent from a

different location than its listed shipping address. Investigator Menzie then placed

the target package in a line with “four or five” other similar parcels. His partner,

Officer James Smith, was already on the scene with his certified narcotics detector

dog, Hydro. At Officer Smith’s command, Hydro conducted a drug sniff of the

packages. Hydro alerted to the target package.

¶4 Investigator Menzie removed the target package from the FedEx facility and

obtained a search warrant for it. Investigator Menzie, Officer Smith, and other law

enforcement officers then opened the target package at the interdiction unit office.

Inside the target package, the officers found approximately 15 yellow envelopes, each

containing vacuum-sealed bags of a green, leafy substance that they recognized as

marijuana; inside one of the bags, they also discovered what appeared to be a GPS

tracking device. After weighing and photographing the contents of each bag, the

officers determined that the target package contained approximately 15 pounds of

the green, leafy substance that they recognized as marijuana.

¶5 Investigator Menzie then drove to the address listed on the target package’s

shipping label, where he saw people (including one later identified as Defendant) in

the driveway. While surveilling the recipient’s address, Investigator Menzie observed

that there was a self-storage facility approximately two miles away. He later testified
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that the proximity of this facility was noteworthy to him “[b]ecause a storage unit is

commonly used by individuals who [are] dealing with large amounts of illegal

substance to store away sometimes from their residence, sometimes just to

disassociate themselves from the residence that they’re actually living in.”

¶6 Later that day, a FedEx employee informed Investigator Menzie that a man

identifying himself as “Marcus” had called FedEx to inquire about the status of the

target package, and that he left a phone number at which to contact him with further

information. Investigator Menzie called Marcus, who confirmed the tracking number

of the target package, its shipping address, and the name of its intended recipient. At

that point, Investigator Menzie identified himself as a law enforcement officer;

Marcus reacted with surprise, cussed, and abruptly ended the call.

¶7 The next day, on 22 March 2018, Investigator Menzie, Officer Smith, and

Sergeant Daniel Wright investigated the self-storage facility near the intended

recipient’s address. Officer Smith took Hydro to a row of storage units that were “out

of sight[,]” and Hydro alerted to a particular unit. Investigator Menzie left to obtain

a search warrant for the unit. Before Investigator Menzie returned, Defendant

arrived and approached the unit with a bag in his hand. Sergeant Wright intercepted

Defendant and patted him down.

¶8 When Defendant placed the bag on the back of his car, Sergeant Wright

observed a substance inside of the bag that he recognized, from his training and
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experience, as “marijuana wax.” Sergeant Wright handcuffed Defendant, and they

waited for Investigator Menzie to return with the search warrant. After Investigator

Menzie returned and read the search warrant to Defendant, the officers opened the

storage unit with the use of a key provided by Defendant. Inside, the officers found a

box containing more vacuum-sealed bags of what appeared to be the same green, leafy

substance that they recognized as marijuana, and a suitcase containing several clear

jars of a brown substance that Sergeant Wright later testified was “commonly

referred to as shatter . . . . [I]t’s cooked-down marijuana. It’s highly concentrated

THC.”

¶9 Investigator Menzie then obtained a document search warrant for Defendant’s

residence, which matched the address for the intended recipient of the target

package. Law enforcement officers executed the search warrant that same day and

discovered items that they believed to be drugs and drug paraphernalia. At that point,

the officers temporarily halted the search until they obtained a drug search warrant;

then, the search resumed. Inside a padlocked bedroom, officers discovered empty

vacuum-sealed bags in a dresser drawer; a butane gas canister used to manufacture

marijuana wax; a digital scale hidden behind a television; a bong; an e-cigarette with

cartridges containing a brown liquid; and glass jars similar to those found in the

search of Defendant’s storage unit.

¶ 10 On 5 June 2018, a Wake County grand jury returned indictments charging
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Defendant with two counts of conspiracy to traffic marijuana (one charge by

transportation and one by possession); two counts of possession with intent to sell or

deliver marijuana; one count of possession with intent to sell or deliver THC; two

counts of possession of marijuana; one count of maintaining a storage unit for

purposes of keeping or selling controlled substances; and one count of maintaining a

dwelling for purposes of keeping or selling controlled substances.

¶ 11 On 19 November 2018, Defendant moved to suppress “evidence obtained as the

result of an unconstitutional seizure of the [target package] addressed to . . .

Defendant, the unconstitutional search, seizure, and interrogation of [Defendant],

and the unconstitutional search and seizure of [Defendant]’s storage locker and

residence.” On 27 January 2020, Defendant’s motion came on for hearing in Wake

County Superior Court. After considering the motion and arguments of counsel, the

trial court denied Defendant’s motion from the bench. No written order was entered.

¶ 12 At the close of the State’s evidence, Defendant moved to dismiss all charges

against him, which the trial court denied. Defendant renewed his motion to dismiss

at the close of all evidence, which the trial court again denied. The State then

voluntarily dismissed the charge of conspiracy to traffic marijuana by possession.

During the charge conference, the trial court sua sponte dismissed one count of

possession with intent to sell or deliver marijuana and one count of felony possession

of marijuana.
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¶ 13 On 31 January 2020, the jury returned its verdicts finding Defendant guilty of

the remaining charges. The trial court sentenced Defendant to an active term of 25–

39 months in the custody of the North Carolina Division of Adult Correction for

conspiracy to traffic marijuana by transportation. The trial court then consolidated

the remaining convictions into three judgments, sentenced Defendant to three

consecutive terms of 5–15 months in the custody of the North Carolina Division of

Adult Correction, then suspended these sentences and ordered that Defendant be

placed on supervised probation for a period of 24 months following his release from

incarceration. Defendant gave oral notice of appeal in open court.

II. Discussion

¶ 14 On appeal, Defendant raises several constitutional issues concerning the

investigation of the target package. Defendant argues that the trial court erred by

denying his motion to suppress because law enforcement officers lacked either

probable cause or reasonable suspicion to support (1) the initial removal of the target

package from the conveyor belt at the FedEx facility and (2) the temporary retention

of the target package to effectuate a drug dog sniff.

¶ 15 Defendant then makes several arguments that arise from our General

Assembly’s legalization of industrial hemp. See An Act to Recognize the Importance

and Legitimacy of Industrial Hemp Research, to Provide for Compliance with

Portions of the Federal Agricultural Act of 2014, and to Promote Increased
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Agricultural Employment, S.L. 2015-299, 2015 N.C. Sess. Laws 1483. The Industrial

Hemp Act “legalized the cultivation, processing, and sale of industrial hemp within

the state, subject to the oversight of the North Carolina Industrial Hemp

Commission.” State v. Parker, 277 N.C. App. 531, 2021-NCCOA-217, ¶ 27, disc. review

denied, 378 N.C. 366, 860 S.E.2d 917 (2021).

¶ 16 In sum, Defendant argues that “[b]ecause industrial hemp and marijuana . . .

are identical in appearance and odor, and both contain THC, law enforcement officers

and drug-detecting canines are unable to distinguish the two without a quantitative

test measuring the chemical percentage of THC, irrespective of their training and

experience.” Thus, Defendant maintains that (1) the trial court erred by denying his

motion to suppress because the green, leafy substance inside the target package was

seized prior to determining whether it contained an unlawful concentration of THC;

(2) the indictment charging Defendant with possession with intent to sell or deliver

THC was facially invalid because it failed to specifically allege an unlawful

concentration of THC; (3) the trial court erred by denying Defendant’s motion to

dismiss the charge of possession with intent to sell or deliver THC because the State

presented insufficient evidence that the brown material recovered during lawful

searches of Defendant’s storage unit, residence, and the bag that he was carrying

when he arrived at the storage unit contained an unlawful concentration of THC; and

(4) the trial court erred by permitting several of the State’s witnesses to offer opinion
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testimony identifying the various seized substances as “marijuana,” “marijuana wax,”

“shatter,” and “highly concentrated THC,” absent a scientifically valid chemical

analysis of each substance, in violation of Rule 702 of the North Carolina Rules of

Evidence.

¶ 17 Defendant further argues that the trial court committed plain error by

admitting evidence regarding the chemical analysis of the seized material discovered

inside the target package, in violation of his constitutional right to confront

testimonial witnesses against him.

¶ 18 Finally, Defendant advances a pair of arguments concerning the charge of

conspiracy to traffic marijuana by transportation. Defendant contends that the trial

court erred by denying his motion to dismiss this charge due to insufficient evidence,

and that the trial court erred by admitting into evidence a recording of a phone call

between Investigator Menzie and Marcus Rawls, Defendant’s alleged co-conspirator.

A. Motion to Suppress

¶ 19 We begin by addressing Defendant’s constitutional arguments concerning the

initial removal of the target package from the conveyor belt at the FedEx facility and

the subsequent searches and seizures that followed. Defendant raises several

arguments arising under the federal and state constitutions, essentially claiming that

the trial court erred by denying his motion to suppress because law enforcement
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officers lacked either probable cause or reasonable suspicion1 to seize the target

package at the FedEx facility. However, for the following reasons, we affirm the trial

court’s denial of Defendant’s motion to suppress.

1. Standard of Review

¶ 20 “In evaluating the denial of a motion to suppress, the reviewing court must

determine whether competent evidence supports the trial court’s findings of fact and

whether the findings of fact support the conclusions of law.” State v. Williams, 366

N.C. 110, 114, 726 S.E.2d 161, 165 (2012) (citation and internal quotation marks

omitted). “The trial court’s findings of fact on a motion to suppress are conclusive on

appeal if supported by competent evidence, even if the evidence is conflicting.” Id.

(citation and internal quotation marks omitted). “Findings of fact that are not

challenged on appeal are deemed to be supported by competent evidence and are

binding upon this Court.” State v. Lane, 280 N.C. App. 264, 2021-NCCOA-593, ¶ 12

(citation and internal quotation marks omitted). “Conclusions of law are reviewed de

novo and are fully reviewable on appeal.” Williams, 366 N.C. at 114, 726 S.E.2d at

165 (citation and internal quotation marks omitted).

1 Defendant argues that “this Court could—and should—rule under our State
Constitution that probable cause is required to seize and investigate a parcel,” rather than
continuing to apply the reasonable suspicion standard adopted by the United States Supreme
Court. See United States v. Van Leeuwen, 397 U.S. 249, 252–53, 25 L. Ed. 2d 282, 285–86
(1970). As discussed in section II.A.2 below, we decline Defendant’s invitation to address this
issue.
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2. The Trial Court’s Ruling

¶ 21 At the conclusion of the suppression hearing, the trial court denied Defendant’s

motion to suppress. The court instructed the assistant district attorney to prepare a

proposed order2 consistent with the following orally rendered findings of fact and

conclusions of law:

You should find the facts by a preponderance of the
evidence that on the day in question, March 21, 2018, these
officers were working interdiction at Fed Ex, that Fed Ex
facility on Atlantic Avenue; that they observed this parcel
coming down the conveyor belt, and their attention was
attracted to it by the fact that all the seams were taped,
which, based upon their training and experience -- or,
rather, training and experience of Investigator Menzie, is
an indication of a parcel which might contain controlled
substances.

That upon examination of the shipping label, the phone
number listed for the recipient appeared to be fictitious. It
was 888-8888.

That the officers removed the package from the conveyor
belt and examined it further. Upon running the name and
address and phone number for the sender through the law
enforcement databases -- and you should identify those
which they were employing -- it appeared that the address
for the sender was fictitious; that the phone number for the
sender was fictitious; that the sender, in fact, lived at
another address; that the package was actually shipped out
of Sun Valley, California, not North Hollywood, California.

That the officers then placed the package in a lineup with
four other parcels and had a K-9 or dog trained in narcotics
detection, which dog is on the scene with its handler, sniff

2 No written order on Defendant’s motion to suppress appears in the record on appeal.
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the packages. Include as a fact, of course, that the dog was
certified, and please include the name of the certifying
agency.

That the dog alerted on the suspect package, and based
upon this information, the officers seized the package and
applied to the magistrate for a search warrant.

Based upon these facts, the Court would conclude as a
matter of law that [D]efendant did have standing to
challenge the search warrant based upon the fact that
[D]efendant is the named recipient of the package; that a
reasonable and articulable suspicion existed sufficient to
justify the brief detention of the package for purposes of
having a drug dog sniff it; and that the retention of the
package was for a reasonable period of time given that the
dog was on the scene. And, in fact, as a finding of fact, you
may include that the process of this lineup took about five
to ten minutes.

And that based upon the totality of the circumstances,
probable cause existed for the issuance of the search
warrant for the parcel. And, accordingly, the motion to
suppress the issuance of the search warrant and seizure of
the parcel is denied.

¶ 22 On appeal, Defendant does not specifically challenge any of the trial court’s

findings of fact, and therefore they are binding upon this Court. Lane, ¶ 12. Rather,

Defendant challenges the trial court’s conclusion of law, based upon the unchallenged

facts, that “the brief detention of the [target] package for purposes of having a drug

dog sniff it” was supported by reasonable suspicion.3

3 The United States Supreme Court has determined that a warrantless postal
interdiction must be supported by reasonable suspicion of illegal activity afoot. See Van
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¶ 23 We conclude that Defendant’s Fourth Amendment rights were not violated in

the case at bar. At the outset, we do not accept Defendant’s initial contention that the

mere removal of the target package from the conveyor belt for a drug dog sniff was a

“seizure” implicating his Fourth Amendment rights. Neither was the drug dog sniff

at the FedEx facility a “search” infringing upon any of Defendant’s Fourth

Amendment rights.

¶ 24 However, assuming, arguendo, that Defendant’s Fourth Amendment rights

were implicated, we also conclude that he waived appellate review of these

arguments. Each of these reasons compels our conclusion that the trial court did not

err by denying Defendant’s motion to suppress.

3. Removal of the Target Package

¶ 25 At all stages of this case, from the suppression hearing through appellate

briefing, Defendant has maintained that the initial removal of the target package

from the conveyor belt was a seizure in violation of the Fourth Amendment. After

Leeuwen, 397 U.S. at 252–53, 25 L. Ed. 2d at 285–86. However, Defendant invites this Court
to interpret the North Carolina Constitution as requiring that the State satisfy the more
stringent probable cause standard in warrantless postal interdictions. See State v. Carter,
322 N.C. 709, 713, 370 S.E.2d 553, 555 (1988) (“Even were the two provisions identical, we
have the authority to construe our own constitution differently from the construction by the
United States Supreme Court of the Federal Constitution, as long as our citizens are thereby
accorded no lesser rights than they are guaranteed by the parallel federal provision.”),
superseded in part by statute on other grounds, An Act to Provide for the Adoption of the Good
Faith Exception to the Exclusionary Rule into State Law, S.L. 2011-6, § 2, 2011 Sess. Laws
10, 11. Given our disposition of Defendant’s other Fourth Amendment arguments, we need
not address this issue at this juncture.
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careful review, we disagree.

¶ 26 The Fourth Amendment to the United States Constitution protects “[t]he right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures[.]” U.S. Const. amend. IV. “The North Carolina

Constitution affords similar protection.” State v. Cabbagestalk, 266 N.C. App. 106,

111, 830 S.E.2d 5, 9 (2019); see N.C. Const. art. I, § 20. “Letters and other sealed

packages are in the general class of effects in which the public at large has a

legitimate expectation of privacy; warrantless searches of such effects are

presumptively unreasonable.” United States v. Jacobsen, 466 U.S. 109, 114, 80 L. Ed.

2d 85, 94 (1984). “Both the sender and the designated recipient of a package sent by

mail or other carrier have a legitimate expectation of privacy in the contents of that

package.” United States v. Hurley, 182 F. App’x 142, 145 (4th Cir.), cert. denied, 549

U.S. 905, 166 L. Ed. 2d 183 (2006)4; see also Jacobsen, 466 U.S. at 114, 80 L. Ed. 2d

at 94.

¶ 27 “A ‘seizure’ of property occurs when there is some meaningful interference with

an individual’s possessory interests in that property.” Jacobsen, 466 U.S. at 113, 80

It is axiomatic that the courts of North Carolina must treat “decisions of the United
4

States Supreme Court as binding” on issues arising under the federal constitution, but our
Supreme Court has repeatedly recognized that we may also “accord[ ] to decisions of lower
federal courts such persuasiveness as these decisions might reasonably command.” State v.
Berryman, 360 N.C. 209, 212, 624 S.E.2d 350, 353 (2006) (citation omitted).
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L. Ed. 2d at 94. “The intrusion on possessory interests occasioned by a seizure of one’s

personal effects can vary both in its nature and extent. The seizure may be made after

the owner has relinquished control of the property to a third party[,]” such as an

express courier. United States v. Place, 462 U.S. 696, 705, 77 L. Ed. 2d 110, 119–20

(1983). A sender who voluntarily relinquishes control of a package to a private courier

may be “unable to show that the invasion intruded upon either a privacy interest in

the contents of the packages or a possessory interest in the packages themselves.” Id.

at 705–06 n.6, 77 L. Ed. 2d at 120 n.6 (citation omitted). Therefore, in postal

interdiction cases just as in other Fourth Amendment contexts, the nature and extent

of the intrusion upon the privacy interest in the contents of a package vary with the

totality of the circumstances. Indeed, as Justice Brennan noted in Place, “the mere

detention of mail not in [an addressee’s] custody or control amounts to at most a

minimal or technical interference with his person or effects, resulting in no personal

deprivation at all.” Id. at 718 n.5, 77 L. Ed. 2d at 128 n.5 (Brennan, J., concurring)

(citation omitted).

¶ 28 Although neither the appellate courts of North Carolina nor the United States

Court of Appeals for the Fourth Circuit have directly addressed the Fourth

Amendment in the context of postal interdiction, other federal circuit courts of

appeals have considered this issue. For example, the Ninth Circuit has concluded

that, “[a]lthough a person has a legitimate interest that a mailed package will not be
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opened and searched en route, there can be no reasonable expectation that postal

service employees will not handle the package or that they will not view its exterior[.]”

United States v. Hernandez, 313 F.3d 1206, 1209–10 (9th Cir. 2002) (citation omitted),

cert. denied, 538 U.S. 1023, 155 L. Ed. 2d 867 (2003). The Hernandez Court further

explained that the recipient of a mailed package has a different interest in the

package than its sender:

The recipient of a mailed item . . . has a reasonable
expectation that the mail will not be detained by postal
employees beyond the normal delivery date and time. In
other words, an addressee’s possessory interest is in the
timely delivery of a package, not in having his package
routed on a particular conveyor belt, sorted in a particular
area, or stored in any particular sorting bin for a particular
amount of time.

Id. at 1210 (emphasis added) (citation and internal quotation marks omitted).

Therefore, “even though first-class mail is protected by the Fourth Amendment from

unreasonable search and seizure, it is not beyond the reach of all inspection. Rather,

the question is whether the conditions for its detention and inspection have been

satisfied.” Id. (citations and internal quotation marks omitted); United States v. Van

Leeuwen, 397 U.S. 249, 251–52, 25 L. Ed. 2d 282, 285 (1970).

¶ 29 In Van Leeuwen, for instance, the United States Supreme Court concluded that

law enforcement officers’ warrantless detention of a first-class package for

approximately 29 hours while they obtained a search warrant did not implicate the
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defendant’s privacy interest:

No interest protected by the Fourth Amendment was
invaded by forwarding the packages the following day
rather than the day when they were deposited. The
significant Fourth Amendment interest was in the privacy
of this first-class mail; and that privacy was not disturbed
or invaded until the approval of the magistrate was
obtained.

397 U.S. at 253, 25 L. Ed. 2d at 286 (emphasis added).

¶ 30 Accordingly, “for the purposes of the Fourth Amendment, no seizure occurs if

a package is detained in a manner that does not significantly interfere with its timely

delivery in the normal course of business.” United States v. Quoc Viet Hoang, 486

F.3d 1156, 1162 (9th Cir. 2007), cert. denied, 552 U.S. 1144, 169 L. Ed. 2d 813 (2008);

see also id. (holding that “the ten minute detention of [a defendant]’s package in the

FedEx hold room without reasonable suspicion d[id] not implicate his Fourth

Amendment rights”).

¶ 31 In the instant case, when the trial court denied Defendant’s motion to

suppress, it found as fact that Hydro was “on the scene with” Officer Smith and that

“the process of this lineup took about five to ten minutes.” Defendant does not

challenge these findings of fact, and they are, therefore, binding on appeal. See Lane,

¶ 12. Based on these unchallenged findings, the trial court concluded that “the

retention of the [target] package was for a reasonable period of time given that the

dog was on the scene.” Defendant’s insistence that this temporary retention of the
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target package amounted to a seizure implicating his Fourth Amendment rights is

not supported by the relevant case law, as a delay of approximately five to ten

minutes to procure an on-site canine unit for a drug sniff of an apparently suspicious

package did “not significantly interfere with [the target package’s] timely delivery in

the normal course of business.” Quoc Viet Hoang, 486 F.3d at 1162. Accordingly,

Defendant’s “possessory interest . . . in the timely delivery of [the target] package”

was not disturbed, Hernandez, 313 F.3d at 1210, and we cannot agree with

Defendant’s argument that the mere removal of the target package from the conveyor

belt for a drug dog sniff was a “seizure” implicating the Fourth Amendment.

¶ 32 Defendant also challenges several investigatory acts undertaken by law

enforcement officers before Investigator Menzie obtained a search warrant to open

the target package upon Hydro’s positive alert to the presence of controlled

substances during the drug dog sniff conducted at the FedEx facility. For the reasons

explained above, the initial removal of the target package from the conveyor belt was

not a “seizure” implicating Defendant’s Fourth Amendment rights. As the trial court

properly concluded, “a reasonable and articulable suspicion existed sufficient to

justify the brief detention of the package for purposes of having a drug dog sniff it;

and . . . the retention of the package was for a reasonable period of time given that

the dog was on the scene.”

¶ 33 Neither was Hydro’s drug sniff a “search” implicating Defendant’s Fourth
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Amendment rights. And, given that Hydro alerted to the target package in the line-

up, the trial court correctly concluded “that based upon the totality of the

circumstances, probable cause existed for the issuance of the search warrant for the

parcel.” Taken together, neither the removal of the package nor the drug dog sniff

violated Defendant’s Fourth Amendment right to be free from unreasonable searches

and seizures because under the facts presented, those acts constituted neither a

seizure (the removal) nor a search (the drug dog sniff). Rather, those acts, viewed in

the totality of the circumstances, merely provided further support for Investigator

Menzie’s determination that probable cause existed to obtain a search warrant to

open the target package. Accordingly, the trial court did not err by denying

Defendant’s motion to suppress.

¶ 34 Moreover, the subsequent searches and seizures flowing from these acts were

supported by valid warrants. Defendant challenges the validity of these warrants

solely for want of probable cause, based on the same Fourth Amendment arguments

that we have addressed and determined to be without merit. Yet each search warrant

application reveals that law enforcement officers properly built their investigation

step by step.

¶ 35 Having determined that probable cause existed to support his application for

a search warrant of the target package, Investigator Menzie immediately sought and

obtained one, and the resultant search yielded approximately 15 pounds of vacuum-
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sealed marijuana and a GPS tracker. When Investigator Menzie surveilled the

residence to which the target package was addressed, he noticed a nearby storage

facility and subsequently learned that Defendant rented a unit at that location. In a

second drug dog sniff—which Defendant does not challenge on appeal—Hydro alerted

to Defendant’s storage unit, and within an hour Defendant arrived at the unit

carrying a tote in which was visible a brown substance that law enforcement officers

believed was THC. These facts, combined with the previously developed probable

cause, gave rise to further probable cause sufficient to support the issuance of a

search warrant for the storage unit. That lawful search, in turn, provided sufficient

probable cause to support the issuance of a document search warrant for the

residence, the search of which provided sufficient probable cause to support the

issuance of a controlled substances search warrant, permitting the lawful search of

the residence.

¶ 36 In sum, at every stage of the investigation—from the initial removal of the

target package and the drug dog sniff at the FedEx facility through each search and

seizure conducted pursuant to valid and lawfully obtained warrants—law

enforcement officers complied with the requirements of the Fourth Amendment.

Accordingly, Defendant’s challenge is overruled.

¶ 37 However, even assuming, arguendo, that the law enforcement officers’ actions

here amounted to searches or seizures within the purview of the Fourth Amendment,
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we additionally conclude that he has waived appellate review of these issues.

4. Waiver of Appellate Review

¶ 38 Rule 10(a)(1) of the North Carolina Rules of Appellate Procedure establishes

that a party must object at trial, and obtain a ruling from the court, in order to

preserve an issue for appellate review:

In order to preserve an issue for appellate review, a party
must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context. It is also
necessary for the complaining party to obtain a ruling upon
the party’s request, objection, or motion.

N.C.R. App. P. 10(a)(1).

¶ 39 A motion in limine, such as a pretrial motion to suppress, is “not sufficient to

preserve for appeal the question of admissibility of evidence if the defendant does not

object to that evidence at the time it is offered at trial.” State v. Golphin, 352 N.C.

364, 405, 533 S.E.2d 168, 198 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305

(2001). Following the denial of a pretrial motion to suppress evidence, the defendant’s

subsequent “[f]ailure to object at trial waives appellate review[.]” State v. Anthony,

271 N.C. App. 749, 752, 845 S.E.2d 452, 455, disc. review denied, 376 N.C. 544, 851

S.E.2d 634 (2020).

¶ 40 Here, Defendant filed a pretrial motion to suppress, inter alia, “evidence

obtained as the result of an unconstitutional seizure of the [target package] addressed
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to . . . Defendant,” and renewed his objection at trial to the introduction of evidence

concerning the drug dog sniff. Nonetheless, Defendant concedes that he “did not

object when the State elicited testimony about the removal of the [target package]

from the conveyor belt.” Therefore, Defendant has waived appellate review of the

issue of the target package’s removal from the conveyor belt, see id., and the trial

court’s conclusion that “a reasonable and articulable suspicion existed sufficient to

justify a brief detention of the package for purposes of having a drug dog sniff it”

remains undisturbed.

¶ 41 Perhaps in an attempt to avoid this waiver, Defendant couches his dog-sniff

argument in the conjunctive, combining the drug dog sniff with the alleged “seizure”

of the target package from the conveyor belt: “such actions plus the conducting of a

lineup with a narcotics-detecting canine constituted a search[.]” (Emphasis added).

This argument fails.

¶ 42 Despite the fact that Defendant objected at trial to the introduction of evidence

regarding Hydro’s drug sniff of the target package once it was removed from the

conveyor belt, this subsequent objection cannot overcome Defendant’s failure to object

to the State’s initial introduction of Investigator Menzie’s testimony regarding the

removal of the target package itself—the alleged “seizure” that Defendant has

consistently characterized as the initial Fourth Amendment violation. Moreover,

Defendant’s subsequent objection at trial to the introduction of evidence regarding
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the drug dog sniff cannot preserve Defendant’s broader Fourth Amendment

arguments for appellate review because the drug dog sniff, on its own, did not infringe

on Defendant’s Fourth Amendment rights.

¶ 43 Defendant primarily bases his argument concerning the drug dog sniff on

Florida v. Jardines, in which the United States Supreme Court concluded that “the

officers’ investigation took place in a constitutionally protected area”—the front porch

of the defendant’s home—and held that “[t]he government’s use of trained police dogs

to investigate the home and its immediate surroundings is a ‘search’ within the

meaning of the Fourth Amendment.” 569 U.S. 1, 7, 11–12, 185 L. Ed. 2d 495, 501–02,

504 (2013).

¶ 44 In analogizing the target package in this case to the front door of the home in

Jardines, Defendant disregards extensive precedent according a person’s home

heightened Fourth Amendment protection. Id. at 6, 185 L. Ed. 2d at 501 (“[W]hen it

comes to the Fourth Amendment, the home is first among equals.”). In fact, the

Jardines Court explicitly distinguished a warrantless drug dog sniff of the home and

its immediate surroundings from previous decisions involving warrantless drug dog

sniffs in public places, which the Supreme Court determined did not implicate the

defendants’ constitutional expectations of privacy in their property or effects. Id. at

10–11, 185 L. Ed. 2d at 503–04; see also Illinois v. Caballes, 543 U.S. 405, 409, 160 L.

Ed. 2d 842, 847 (2005) (concluding that “the use of a well-trained narcotics-detection
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dog . . . during a lawful traffic stop, generally does not implicate legitimate privacy

interests”); Place, 462 U.S. at 707, 77 L. Ed. 2d at 121 (concluding that the “exposure

of [the] respondent’s luggage, which was located in a public place, to a trained canine

. . . did not constitute a ‘search’ within the meaning of the Fourth Amendment”).

¶ 45 The Jardines Court focused on the physical intrusion of the defendant’s “home

and its immediate surroundings” rather than any violation of his reasonable

expectation of privacy. 569 U.S. at 11, 185 L. Ed. 2d at 504 (“[W]e need not decide

whether the officers’ investigation of Jardines’ home violated his expectation of

privacy under Katz [v. United States, 389 U.S. 347, 19 L. Ed. 2d 576 (1967)]. . . . That

the officers learned what they learned only by physically intruding on Jardines’

property to gather evidence is enough to establish that a search occurred.”).

¶ 46 As our Supreme Court has explained, Jardines presents an exception to the

“generally permissive view of public dog sniffs under the Fourth Amendment.” State

v. Miller, 367 N.C. 702, 708, 766 S.E.2d 289, 293 (2014). Insofar as the relevant

decisions of the United States Supreme Court “encourage police to utilize dog sniffs

in the public sphere,” the Court’s decision in Jardines “places police on a much shorter

leash when employing dog sniffs in and around the home.” Id. (emphases added).

¶ 47 In the present case, however, Defendant can claim no physical intrusion

analogous to that in Jardines, because the drug dog sniff in question did not occur at

his home or within its immediate surroundings. Instead, the drug dog sniff here is
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precisely in line with the sort of investigation in the “public sphere” that our Supreme

Court noted was “encourage[d]” by the United States Supreme Court’s pre-Jardines

opinions. Id.

¶ 48 We conclude that the drug dog sniff of the target package, which occurred on

the grounds of a private, third-party facility at which Defendant was not present and

in which he claimed no property interest, did not implicate any Fourth Amendment

right in and of itself. Further, at the time of these events, Defendant was unaware of

either the drug dog sniff or the temporary retention of the target package that

precipitated the sniff. Lastly, as previously discussed, the target package was only

detained for a brief period of time, which was insufficient to implicate Defendant’s

Fourth Amendment rights. See Van Leeuwen, 397 U.S. at 253, 25 L. Ed. 2d at 286.

¶ 49 Accordingly, the warrantless drug dog sniff of the target package, still in the

mail stream and in the custody of a third party on the grounds of a facility in which

Defendant had no possessory interest, and which the trial court found only “took

about five to ten minutes[,]” did not in and of itself implicate the Fourth Amendment.

Therefore, Defendant’s renewed objection at trial to the introduction of evidence

concerning the drug dog sniff was insufficient to resurrect any prior unpreserved

Fourth Amendment argument for appellate review.

5. Plain Error

¶ 50 Finally, “out of an abundance of caution,” Defendant contends that the trial
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court’s denial of his motion to suppress “constituted plain error necessitating

reversal.” However, “[t]he first step under plain error review is . . . to determine

whether any error occurred at all.” State v. Oxendine, 246 N.C. App. 502, 510, 783

S.E.2d 286, 292, disc. review denied, 368 N.C. 921, 787 S.E.2d 24 (2016). We have

already determined that the law enforcement officers’ actions did not implicate any

of Defendant’s Fourth Amendment rights. In that Defendant is unable to show any

error in the trial court’s denial of his motion to suppress, Defendant’s plain error

arguments are overruled as well.

¶ 51 Moreover, in reaching these determinations, we have carefully reviewed the

evidence at the suppression hearing. We further conclude that the trial court’s

findings of fact are supported by the evidence, and that those findings, in turn,

support the trial court’s conclusions of law and its denial of Defendant’s motion to

suppress. For all of these reasons, we affirm the denial of Defendant’s motion to

suppress.

B. Industrial Hemp

¶ 52 The majority of Defendant’s remaining issues on appeal stem from our General

Assembly’s legalization of industrial hemp. “Industrial hemp is a variety of the

species Cannabis Sativa—the same species of plant as marijuana. The difference

between the two substances is that industrial hemp contains very low levels of [THC],

which is the psychoactive ingredient in marijuana.” Parker, ¶ 27. Our General
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Statutes define “industrial hemp” as “[a]ll parts and varieties of the plant Cannabis

sativa (L.), cultivated or possessed by a grower licensed by the [North Carolina

Industrial Hemp] Commission, whether growing or not, that contain a [THC]

concentration of not more than three-tenths of one percent (0.3%) on a dry weight

basis.” N.C. Gen. Stat. § 106-568.51(7) (2021).5

¶ 53 Defendant maintains that the passage of the Industrial Hemp Act altered the

legal landscape surrounding marijuana and THC, changes which resulted in

prejudicial errors during several stages of his prosecution. Specifically, Defendant

challenges: (1) the validity of the indictment charging him with possession with intent

to sell or deliver THC; (2) the sufficiency of the State’s evidence regarding the charge

of possession with intent to sell or deliver THC; and (3) the admissibility of the

opinion testimony of witnesses for the State identifying the various seized substances

as “marijuana,” “marijuana wax,” “shatter,” and “highly concentrated THC.”

5 In order to maintain the legal status of “hemp” and “hemp products,” see N.C. Gen.
Stat. § 90-87(13a)–(13b) (2022), following the expiration of the Industrial Hemp Act on 30
June 2022, our General Assembly amended the North Carolina Controlled Substances Act
effective 30 June 2022, see An Act to Conform the Hemp Laws with Federal Law by
Permanently Excluding Hemp from the State Controlled Substances Act, S.L. 2022-32,
https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2021-2022/SL2022-32.pdf.
Nonetheless, as a general rule, “the amendment of a criminal statute does not affect the
prosecution or punishment of a crime committed before the amendment becomes effective[.]”
State v. Hart, 287 N.C. 76, 81, 213 S.E.2d 291, 295 (1975) (citation omitted). Thus, “as to such
crimes the original statute remains in force.” Id. (citation omitted). Because the Industrial
Hemp Act was in effect at all times relevant to this appeal, our analysis is unchanged by this
recent legislation.
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¶ 54 We note initially that at the root of these arguments is a fundamental

misapprehension concerning the State’s burden of proof at each stage of these

proceedings, none of which the provisions of the Industrial Hemp Act affect to the

degree that Defendant contends. Although our appellate courts have yet to fully

address the effect of industrial hemp’s legalization on the panoply of standards and

procedures applicable during the various stages of a criminal investigation and

prosecution for acts involving marijuana, see Parker, ¶ 29 (“The legal issues raised by

the recent legalization of hemp have yet to be analyzed by the appellate courts of this

state.”), the federal courts of North Carolina have considered some of these issues.

We find their analyses illustrative with regard to the enduring viability of our

marijuana case law and the legal principles articulated by those precedents, despite

the enactment of the Industrial Hemp Act.

¶ 55 In United States v. Harris, the United States District Court for the Eastern

District of North Carolina explained that “the smell of marijuana alone . . . supports

a determination of probable cause, even if some use of industrial hemp products is

legal under North Carolina law. This is because ‘only the probability, and not a prima

facie showing, of criminal activity is the standard of probable cause.’ ” No. 4:18-CR-

57-FL-1, 2019 WL 6704996, at *3 (E.D.N.C. Dec. 9, 2019) (emphasis added) (quoting

Illinois v. Gates, 462 U.S. 213, 235, 76 L. Ed. 2d 527, 546, reh’g denied, 463 U.S. 1237,

77 L. Ed. 2d 1453 (1983)).
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¶ 56 Similarly, in United States v. Brooks, the United States District Court for the

Western District of North Carolina denied a defendant’s motion to suppress where,

inter alia, the defendant argued that the odor of marijuana that the law enforcement

officer detected “could have been from a legal source.” No. 3:19-cr-00211-FDW-DCK,

2021 WL 1668048, at *4 (W.D.N.C. Apr. 28, 2021). In denying the motion to suppress,

the trial court noted that the defendant cited “no relevant case law which requires a

law enforcement officer to test contraband found in a vehicle based on the plain smell

of marijuana.” Id.

¶ 57 The court then explained the basis for its determination that the legalization

of industrial hemp did not alter the court’s probable-cause analysis:

Assuming, arguendo, hemp and marijuana smell
“identical,” then the presence of hemp does not make all
police probable cause searches based on the odor
unreasonable. The law, and the legal landscape on
marijuana as a whole, is ever changing but one thing is still
true: marijuana is illegal. To date, even with the social
acceptance of marijuana seeming to grow daily, precedent
on the plain odor of marijuana giving law enforcement
probable cause to search has not been overturned.
Therefore, if hemp does have a nearly identical smell to
marijuana — and hemp was present — it would suggest to
this court that [the law enforcement officer] was even more
reasonable to believe evidence of marijuana was present.

Id. (first emphasis added) (footnotes omitted).

¶ 58 The reasoning and analyses of these federal cases are persuasive, and

demonstrate the general shortcoming that underlies Defendant’s various arguments
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on appeal. The passage of the Industrial Hemp Act, in and of itself, did not modify

the State’s burden of proof at the various stages of our criminal proceedings.6

1. Sufficiency of the Indictment

¶ 59 With the above guidance in mind, we first reject Defendant’s argument that

the indictment charging him with possession with intent to sell or deliver THC “was

facially defective because it did not allege with particularity an offense proscribed by

North Carolina law subsequent to the legalization of industrial hemp.”

¶ 60 It is axiomatic that “a valid bill of indictment is essential to the jurisdiction of

the trial court to try an accused for a felony.” State v. Mostafavi, 370 N.C. 681, 684,

6 Defendant also invokes the Industrial Hemp Act to support his argument that the
trial court erred by denying his motion to suppress because the green, leafy substance inside
the parcel was “seized” from the target package prior to determining whether it contained an
unlawful concentration of THC. However, for the reasons articulated in section II.A.3 above,
to the extent that Defendant challenges the initial removal of the target package from the
conveyor belt at the FedEx facility, such removal was not a “seizure” implicating his Fourth
Amendment rights. And to the extent that Defendant refers to the seizure of the vacuum-
sealed bags discovered inside the target package, the bags were seized pursuant to the
execution of a valid, lawfully obtained search warrant and therefore did not violate
Defendant’s Fourth Amendment rights. Further, for the reasons articulated herein, the
Industrial Hemp Act has not changed the State’s burden of proof to overcome a motion to
suppress.
Finally, we note that this is not a case where the detectable odor of marijuana was the
only suspicious fact concerning the package. The trial court’s findings of fact include, inter
alia, that the seams of the package were sealed, the phone number listed for the recipient on
the target package was fictitious, the sender’s address and phone number listed on the target
package were fictitious, and the actual city from which the target package was sent differed
from the city of origin stated on the package. We therefore need not address in this case
whether the odor of marijuana alone may give rise to probable cause for the issuance of a
search warrant, as the totality of the circumstances here was sufficient to give rise to
probable cause. Accordingly, this argument is overruled.
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811 S.E.2d 138, 140 (2018) (citation omitted). While “an indictment must allege all

the essential elements of the offense endeavored to be charged, . . . an indictment

couched in the language of the statute is generally sufficient to charge the statutory

offense[.]” Id. at 685, 811 S.E.2d at 141 (citations and internal quotation marks

omitted).

¶ 61 In the instant case, the challenged indictment alleged that Defendant

“unlawfully, willfully and feloniously did possess with intent to sell or deliver a

controlled substance, delta-9-tetrahydrocannabinol, commonly referred to as ‘THC’,

which is included in Schedule VI of the North Carolina Controlled Substances Act.

This act was done in violation of N.C.G.S. § 90-95(a)(1).” Defendant contends that, in

light of the legalization of industrial hemp, “a cognizable criminal charge would be

possession of a substance containing an unlawful quantity of the chemical compound”

THC. Defendant argues that the indictment was facially defective because it failed to

specifically allege that he possessed “an unlawful quantity” of THC, and thus the trial

court lacked jurisdiction to enter judgment on this charge.

¶ 62 However, regardless of the passage of the Industrial Hemp Act, the

concentration of THC is not an element of the offense of possession with intent to sell

or deliver THC. The Controlled Substances Act makes it illegal to “possess with intent

to manufacture, sell or deliver, a controlled substance[.]” N.C. Gen. Stat. § 90-95(a)(1).

“The offense of possession with intent to sell or deliver has the following three
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elements: (1) possession of a substance; (2) the substance must be a controlled

substance; (3) there must be intent to sell or distribute the controlled substance.”

State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001).

“Tetrahydrocannabinols”—a broader category of substances that includes THC—are

Schedule VI controlled substances. N.C. Gen. Stat. § 90-94(2). Accordingly, by

identifying THC as a controlled substance, the indictment at issue here was

appropriately “couched in the language of the statute” and “sufficient to charge the

statutory offense[.]” Mostafavi, 370 N.C. at 685, 811 S.E.2d at 141 (citation omitted).

¶ 63 Finally, the “plain reading of Chapter 90 reveals lawful possession of a

controlled substance is not an element of the statute but rather an exception[.]” State

v. Palmer, 273 N.C. App. 169, 169, 847 S.E.2d 449, 450 (2020). Significantly, the

Industrial Hemp Act did not remove THC from Schedule VI of the Controlled

Substances Act. See N.C. Gen. Stat. § 90-94(2). And if the Industrial Hemp Act creates

an exception for industrial hemp or somehow alters the State’s well-established

burden of proof in controlled-substance prosecutions, “[i]t shall not be necessary for

the State to negate any exemption or exception set forth in [the Controlled Substances

Act] in any complaint, information, indictment, or other pleading or in any trial,

hearing, or other proceeding under” the Controlled Substances Act. Id. § 90-113.1(a).

The burden of proving that a controlled substance is, in fact, lawfully possessed is

borne by the defendant. Id.
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¶ 64 Defendant has not shown that the indictment charging him with possession

with intent to sell or deliver THC was fatally deficient. Accordingly, this argument is

overruled.

2. Motion to Dismiss

¶ 65 Defendant next argues that the trial court erred by denying his motion to

dismiss the charge of possession with intent to sell or deliver THC “because there was

insufficient evidence the brown material tested by the CCBI lab contained the

requisite percentage of [THC] to be deemed an unlawful substance.”7 This argument,

too, is without merit, because none of the “brown material” falls within the Industrial

Hemp Act’s definition of “industrial hemp.”

¶ 66 This Court reviews a trial court’s denial of a motion to dismiss de novo. State

v. McClaude, 237 N.C. App. 350, 352, 765 S.E.2d 104, 107 (2014). The question for

the trial court upon a defendant’s motion to dismiss “is whether there is substantial

evidence (1) of each essential element of the offense charged, or of a lesser offense

included therein, and (2) of [the] defendant’s being the perpetrator of such offense. If

so, the motion is properly denied.” Id. at 352–53, 765 S.E.2d at 107 (citation omitted).

7 At trial, the State’s forensic chemist testified that she tested one item (“11 sheets of
shatter”) of the several items of brown material that were submitted to her lab at the City-
County Bureau of Investigation. She testified that she only tested this item because there is
no statutory “weight-based threshold for . . . THC,” and that it is “fairly common in most
crime labs to test to [the] statutory threshold in terms of efficiency.” See N.C. Gen. Stat. § 90-
95(d)(4) (making the possession “of any quantity of . . . tetrahydrocannabinols isolated from
the resin of marijuana” a Class I felony (emphasis added)).
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“In making its determination, the trial court must consider all evidence admitted,

whether competent or incompetent, in the light most favorable to the State, giving

the State the benefit of every reasonable inference and resolving any contradictions

in its favor.” Id. at 353, 765 S.E.2d at 107 (citation omitted).

¶ 67 As stated above, for the purposes of the Industrial Hemp Act, “industrial hemp”

means “[a]ll parts and varieties of the plant Cannabis sativa (L.), cultivated or

possessed by a grower licensed by the [North Carolina Industrial Hemp] Commission,

whether growing or not, that contain a [THC] concentration of not more than three-

tenths of one percent (0.3%) on a dry weight basis.” N.C. Gen. Stat. § 106-568.51(7).

¶ 68 Defendant’s claim—that “[w]ithout determining the level of concentration of

[THC] in the brown substance, the State did not present any evidence that the brown

substance actually contained 0.3% or more of [THC] and was thus illegal”—assumes,

without explicitly arguing, that the “brown material” was “industrial hemp,” as

defined by N.C. Gen. Stat. § 106-568.51(7), in the first place. We disagree.

¶ 69 The brown material was neither a part nor a variety of the plant Cannabis

sativa. The State’s forensic chemist, who was tendered and accepted as an expert

witness without objection from Defendant, testified that “[t]here was no plant

material present” in her macroscopic identification of the solid brown material. The

forensic chemist also testified that the brown materials were “extracts of the

marijuana plant[.]” Thus, the brown material is not within the Industrial Hemp Act’s
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definition of “industrial hemp,” but instead more squarely falls under its definition of

“THC”: “[t]he natural or synthetic equivalents of the substances contained in the

plant, or in the resinous extractives of, cannabis, or any synthetic substances,

compounds, salts, or derivatives of the plant or chemicals and their isomers with

similar chemical structure and pharmacological activity.” Id. § 106-568.51(8)

(emphasis added). Further, even if we accepted Defendant’s implicit argument that

the brown material was a “part” or “variety” of the plant Cannabis sativa, Defendant

makes no argument that he was “a grower licensed by the [North Carolina Industrial

Hemp] Commission,” or that the brown material was cultivated by such a licensed

grower, as the statutory definition of “industrial hemp” requires. Id. § 106-568.51(7).

¶ 70 Because the brown material was not “industrial hemp” as defined by the

Industrial Hemp Act, the State was not required to present evidence that the

substance contained 0.3% or more of THC by dry-weight concentration in order to

meet its burden of proof for the offense of possession with intent to sell or deliver

THC.

¶ 71 Accordingly, after careful review of the record, and viewing the evidence “in

the light most favorable to the State,” McClaude, 237 N.C. App. at 353, 765 S.E.2d at

107 (citation omitted), we conclude that the State presented sufficient evidence to

withstand Defendant’s motion to dismiss the charge of possession with intent to sell
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or deliver THC.8 This argument is overruled.

3. Opinion Testimony

¶ 72 Lastly, Defendant argues that the trial court erred by permitting several of the

State’s witnesses to offer opinion testimony that seized substances were “marijuana,”

“marijuana wax,” “shatter,” and “highly concentrated THC” without scientifically

valid chemical analyses identifying them as such, in violation of Rule 702.

¶ 73 Our appellate courts “review the trial court’s decision to admit lay opinion

testimony evidence for abuse of discretion, looking to whether the court’s ruling is

manifestly unsupported by reason or is so arbitrary that it could not have been the

result of a reasoned decision.” State v. Delau, 381 N.C. 226, 2022-NCSC-61, ¶ 29

(citation omitted). Further, in order to show that the erroneous admission of evidence

in a criminal trial prejudiced the defendant, the “defendant bears the burden of

8 Defendant’s argument concerning the sufficiency of the evidence to support the
charge of possession with intent to sell or deliver THC dovetails with his argument, addressed
below, concerning the allegedly erroneous admission of testimony identifying the seized
materials as unlawful controlled substances absent scientifically valid chemical analyses in
violation of Rule 702. To the extent that Defendant’s Rule 702 argument bears on his motion
to dismiss argument, we note that our Supreme Court has recently clarified that it would be
error for this Court to first determine “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 to consider “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.”
State v. Osborne, 372 N.C. 619, 630, 831 S.E.2d 328, 336 (2019). Accordingly, pursuant to our
Supreme Court’s guidance in Osborne, we cannot and should not exclude the challenged
identification testimony from our consideration of the evidence supporting Defendant’s
convictions. Id.
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showing that there is a reasonable possibility that a different result would have been

reached at the trial had the trial court excluded” the erroneously admitted evidence.

State v. Carter, 237 N.C. App. 274, 284, 765 S.E.2d 56, 63 (2014) (citation and internal

quotation marks omitted); N.C. Gen. Stat. § 15A-1443(a). For the reasons that follow,

we conclude that Defendant has not shown prejudicial error.

¶ 74 “[T]he State has the burden of proving every element of the charge beyond a

reasonable doubt . . . .” State v. Nabors, 365 N.C. 306, 313, 718 S.E.2d 623, 627 (2011).

Specifically, in prosecutions involving controlled substances, the State bears the

burden of proving the substance’s identity beyond a reasonable doubt. State v. Ward,

364 N.C. 133, 147, 694 S.E.2d 738, 747 (2010). As a general rule, “the expert witness

testimony required to establish that . . . substances introduced [at trial] are in fact

controlled substances must be based on a scientifically valid chemical analysis and

not mere visual inspection.” Id. at 142, 694 S.E.2d at 744.

¶ 75 However, marijuana has long been excepted from this rule. Notwithstanding

Ward, this Court has “specifically noted that marijuana is distinguishable from other

controlled substances that require more technical analyses for positive identification.

In keeping with a long line of cases, we [have repeatedly] held . . . that the State is

not required to submit marijuana for chemical analysis.” State v. Mitchell, 224 N.C.

App. 171, 179, 735 S.E.2d 438, 444 (2012) (citation omitted), appeal dismissed and

disc. review denied, 366 N.C. 578, 740 S.E.2d 466 (2013).
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¶ 76 Nevertheless, Defendant argues that “the legalization of industrial hemp in

North Carolina has eviscerated th[e] justification” for the marijuana exception

recognized in Mitchell and other cases. Yet assuming, arguendo, that the trial court

abused its discretion in admitting this testimony, Defendant fails to demonstrate that

he was prejudiced by its admission.

¶ 77 As the State observes, “Defendant makes no argument explaining how or for

which convictions that evidence affected the jury’s verdict.” To be sure, Defendant’s

assertion of prejudice is little more than a general recapitulation of his overall

arguments regarding the Industrial Hemp Act. For example, Defendant claims that

“the State failed to produce any evidence that the substances seized in the storage

unit, in the bag [Defendant] carried at the storage unit, or in the residence were

subjected to a valid scientific chemical analysis that confirmed their percentage of”

THC. Thus, Defendant contends that the testimony from Investigator Menzie, Officer

Smith, and Sergeant Wright “that, in their opinion, such substances were

‘marijuana,’ ‘marijuana wax,’ ‘shatter,’ or ‘highly concentrated THC,’ constituted the

State’s most compelling evidence that [Defendant] was guilty of possessing the

alleged substances in question.” Accordingly, if the “most compelling evidence” of

Defendant’s guilt was erroneously admitted, then that admission must have been

prejudicial. We disagree with Defendant’s contention.

¶ 78 First, as Defendant candidly acknowledges, the green, leafy substance in the
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target package was tested, and the substance was determined to contain an unlawful

concentration of THC. Defendant, therefore, could not have been prejudiced by any

erroneously admitted testimony regarding the green, leafy substance found in the

target package because “a scientifically valid chemical analysis” was conducted with

respect to this substance. Ward, 364 N.C. at 142, 694 S.E.2d at 744.

¶ 79 Second, as discussed above, the brown material was not “industrial hemp” as

defined in the Industrial Hemp Act. As such, the State was not required to present

evidence of the concentration of THC present in the brown material; it needed only

present “a scientifically valid chemical analysis” showing that the brown material

contained THC, id., which the State did. Therefore, Defendant could not have been

prejudiced by any erroneously admitted testimony identifying the brown material.

¶ 80 Lastly, although the green, leafy substance discovered in the storage unit was

not tested for its concentration of THC, the State presented overwhelming evidence

of Defendant’s guilt of the offense of possession with intent to sell or deliver

marijuana, such that any erroneously admitted testimony regarding its identification

could not have reasonably affected the jury’s verdict on this charge. Significantly, as

discussed below, the State presented substantial evidence of Defendant’s

participation in a conspiracy to traffic marijuana—a conspiracy that culminated in

the discovery of approximately $153,000.00 worth of “high quality” marijuana inside

the target package, which was addressed to Defendant at Defendant’s residence. The
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State also presented a scientifically valid chemical analysis showing that the green,

leafy material discovered in the target package contained an unlawful concentration

of THC. Further, the State presented evidence of Defendant’s unlawful possession of

various other controlled substances and drug paraphernalia, which law enforcement

officers recovered from four distinct sources: the target package; the storage unit (to

which the officers gained entry pursuant to a lawful search warrant by use of

Defendant’s key and with his cooperation); a bag in Defendant’s possession when he

arrived at the storage unit, in which some of the brown material was in plain view

when he set down the bag at the request of a law enforcement officer; and his

residence.

¶ 81 For the foregoing reasons, and in light of the substantial and overwhelming

evidence of Defendant’s guilt, we conclude that Defendant has not shown “that there

is a reasonable possibility that a different result would have been reached at the trial

had the trial court excluded” any erroneously admitted testimony regarding the

identification of any untested substances. Carter, 237 N.C. App. at 284, 765 S.E.2d at

63 (citation and internal quotation marks omitted). Defendant’s argument is

overruled.9

9 Defendant also argues that the trial court committed plain error by admitting
evidence concerning the chemical analysis of the green, leafy substance discovered in the
target package when individuals involved in allegedly critical stages of that analysis did not
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C. Conspiracy

¶ 82 Defendant next argues that the trial court erred by denying his motion to

dismiss the charge of conspiracy to traffic marijuana by transportation, due to

insufficient evidence of a conspiracy between him and another. Additionally,

Defendant contends that the trial court erroneously and prejudicially admitted into

evidence the recording of a phone call between Investigator Menzie and “Marcus,” the

shipper of the target package. Defendant’s arguments are without merit.

1. Motion to Dismiss

¶ 83 The elements of a criminal conspiracy are well established:

A criminal conspiracy is an agreement between two or
more persons to do an unlawful act or to do a lawful act in
an unlawful way or by unlawful means. To constitute a
conspiracy, it is not necessary that the parties should have
come together and agreed in express terms to unite for a
common object: A mutual, implied understanding is
sufficient, so far as the combination or conspiracy is

testify, which Defendant contends violated his constitutional right to confront witnesses
against him. However, “plain error review in North Carolina is normally limited to
instructional and evidentiary error.” State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326,
333 (2012). “Constitutional issues not raised and passed upon at trial will not be considered
for the first time on appeal.” State v. Lloyd, 354 N.C. 76, 86–87, 552 S.E.2d 596, 607 (2001).
Defendant acknowledges that he did not preserve this issue by objecting to the testimony
regarding the analysis or testing of the substances in this case, nor did he object to the
admission of the written certificate of analysis into evidence. Moreover, Defendant did not
seek to introduce at trial the testimony of any of the “numerous individuals involved in
critical stages of the testing process”—none of whom signed the certificate of analysis
admitted into evidence at trial. These are the individuals that Defendant now complains he
constitutionally should have been able to confront. This asserted error is based upon a
constitutional right, and is not squarely an evidentiary error; thus, plain error review is not
available and this argument is dismissed.
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concerned, to constitute the offense.

State v. Chavez, 378 N.C. 265, 2021-NCSC-86, ¶ 14 (citation omitted).

¶ 84 Significantly, “[t]he conspiracy is the crime and not its execution. Therefore,

no overt act is necessary to complete the crime of conspiracy. As soon as the union of

wills for the unlawful purpose is perfected, the offense of conspiracy is completed.”

Id. (citation omitted).

¶ 85 The State may establish the existence of a conspiracy “by direct or

circumstantial evidence.” Id. (citation omitted). Indeed, direct evidence is not

essential to proving a conspiracy, for such proof “is rarely obtainable. It may be, and

generally is, 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.” Id. (citation omitted).

¶ 86 As stated above, we review de novo a trial court’s denial of a criminal

defendant’s motion to dismiss. McClaude, 237 N.C. App. at 352, 765 S.E.2d at 107.

¶ 87 Here, Defendant argues that “the State lacked evidence of any communication

or planning between [himself] and another person that could sufficiently prove an

agreement or understanding to traffic marijuana.” According to Defendant, “[t]he

State’s evidence, at best, raised the suspicion of a possible association between

[Defendant] and the shipper of the [target package], but that was not enough to

submit this charge to the jury.” Defendant asserts that the State’s case “essentially
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rested on the fact that ‘Joe Teague’ was the addressee listed on the” target package.

Yet in a separate evidentiary challenge, Defendant also asserts that the trial court

erroneously admitted into evidence the recording of a phone call between Investigator

Menzie and Marcus. Although seemingly irrelevant to the question at hand,

Defendant’s evidentiary argument nevertheless implicitly acknowledges that the

State did, in fact, present additional evidence—more than just the shipping label—to

establish the existence of a conspiracy.

¶ 88 Indeed, the State proffered other circumstantial evidence in support of the

existence of a conspiracy in addition to the recording of the phone call between

Investigator Menzie and Marcus. For example, Investigator Menzie testified that he

estimated the street value of the “high quality” marijuana contained in the target

package to be approximately $153,000.00. We agree with the State that such evidence

creates “a strong inference that Marcus did not simply randomly mail the [target

package] to Defendant but instead that he mailed it because Defendant agreed to

accept it.” See id. at 353, 765 S.E.2d at 107 (explaining that the State is entitled to

“the benefit of every reasonable inference” and the resolution of “any contradictions

in its favor” on appellate review of the denial of a defendant’s motion to dismiss

(citation omitted)). Additionally, Marcus shipped this valuable parcel from California

to Defendant’s address using Defendant’s actual name and packed a GPS tracker

within the target package. Viewed “in the light most favorable to the State,” id.
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(citation omitted), these facts further indicate a mutual concern for and interest in

the target package.

¶ 89 Moreover, the recorded phone call itself—which was not erroneously admitted,

for the reasons discussed below—constitutes additional circumstantial evidence

supporting the existence of a conspiracy. As detailed in Investigator Menzie’s search-

warrant application for Defendant’s mobile phone, a FedEx employee informed

Investigator Menzie that Marcus called FedEx to inquire about the target package’s

status, requested a return call when the package was located, and left his phone

number. In the affidavit supporting his search-warrant application, Investigator

Menzie averred that:

I called the number and spoke with “Marcus” who
confirmed the tracking number of his parcel, the address it
was going [to] and the name of the recipient. The
information he provided was the same information listed
on the [target package] intercepted. After obtaining that
information, I identified myself to him and informed him I
had his parcel in my custody. Marcus said, “F[***]” and
hung up.

¶ 90 “[T]aken collectively,” Marcus’s recorded admission to Investigator Menzie

that he sent the target package, his knowledge of its relevant details, his documented

concern for the package’s apparent failure to reach its destination, and his profane

exclamation upon learning that he was speaking with a law enforcement officer

provide strong circumstantial evidence that “point[s] unerringly to the existence of a
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conspiracy.” Chavez, ¶ 14 (citation omitted). Defendant’s argument is overruled.

2. Statement of a Co-Conspirator

¶ 91 Defendant also argues that the recorded phone-call audio was inadmissible

hearsay, which was erroneously and prejudicially admitted into evidence. We

disagree.

a. Standard of Review

¶ 92 “This Court conducts de novo review of the admission of evidence over a

hearsay objection. An erroneous admission of hearsay necessitates a new trial only if

the defendant shows that there is a reasonable possibility that without the error the

jury would have reached a different result.” State v. Roberts, 268 N.C. App. 272, 276,

836 S.E.2d 287, 291 (2019) (citations omitted), disc. review denied, 374 N.C. 271, 839

S.E.2d 350 (2020).

b. Analysis

¶ 93 Rule 801 of the North Carolina Rules of Evidence defines “hearsay” as “a

statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat.

§ 8C-1, Rule 801(c). “Hearsay is not admissible except as provided by statute” or by

the Rules of Evidence. Id. § 8C-1, Rule 802. “A statement is admissible as an exception

to the hearsay rule if it is offered against a party and it is . . . a statement by a

co[-]conspirator of such party during the course and in furtherance of the conspiracy.”
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Id. § 8C-1, Rule 801(d). The proper admission into evidence of a conspirator’s

statement against a co-conspirator “requires the State to establish that: (1) a

conspiracy existed; (2) the acts or declarations were made by a party to it and in

pursuance of its objectives; and (3) while it was active, that is, after it was formed

and before it ended.” State v. Valentine, 357 N.C. 512, 521, 591 S.E.2d 846, 854 (2003)

(citation and internal quotation marks omitted).

¶ 94 Defendant argues that the State has not satisfied any of these requirements,

primarily alleging that “[s]tatements not made between the alleged co-conspirators

do not satisfy the criteria for admitting hearsay under the co-conspirator exception.”

However, “when the State has introduced prima facie evidence of a conspiracy, the

acts and declarations of each party to it in furtherance of its objectives are admissible

against the other members regardless of their presence or absence at the time the

acts and declarations were done or uttered.” State v. Tilley, 292 N.C. 132, 138, 232

S.E.2d 433, 438 (1977). Accordingly, Defendant’s argument that a statement must be

made “between the alleged co-conspirators” in order to be admissible under the co-

conspirator exception to the hearsay rule lacks merit.

¶ 95 Further, as the trial court found in ruling on Defendant’s objection:

[I]n the light most favorable to the State, the State
established a conspiracy existed and that this statement
was made while the conspiracy was still active, that is,
after it was formed and before it was ended; that the
statements were made by a party to the conspiracy, to wit,
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Marcus Rawls or a person purporting to be Marcus Rawls;
and that it was in pursuance of its objectives in that the
declarant was attempting to ensure that the [target]
package was properly delivered.

¶ 96 After the trial court noted that it was “not aware of any requirement that the

statement must be made to another party to the conspiracy as opposed to some third

party who is not a co-conspirator[,]” the court overruled Defendant’s objection and

admitted the recording of the phone call as the statement of a co-conspirator. We

discern no error in the trial court’s ruling.

III. Conclusion

¶ 97 For the reasons stated above, including the fact that neither the initial removal

of the target package nor the drug dog sniff constituted a search or seizure implicating

Defendant’s Fourth Amendment rights and Defendant’s waiver of appellate review of

his Fourth Amendment arguments concerning the initial removal of the target

package from the conveyor belt, we affirm the trial court’s denial of Defendant’s

motion to suppress.

¶ 98 The legalization of industrial hemp, which is reported to be indistinguishable

from marijuana without quantitative chemical analysis, raises compelling legal

issues for our courts. However, we conclude that Defendant’s arguments in the

instant case are without merit. Accordingly, these arguments are overruled.

¶ 99 Similarly, Defendant’s arguments relating to the charge of conspiracy to traffic
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marijuana by transportation are unpersuasive and overruled. For all these reasons,

we conclude that Defendant received a fair trial, free from prejudicial error.

AFFIRMED IN PART; NO PREJUDICIAL ERROR IN PART.

Judges DILLON and COLLINS concur.