State v. Blakney

NO. COA13-1088

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

STATE OF NORTH CAROLINA

v. Forsyth County
Nos. 11 CRS 51776, 6612, 13553
CHRISTOPHER LEON BLAKNEY,
Defendant.

Appeal by defendant from judgment entered 13 February 2013

by Judge William Z. Wood, Jr., in Forsyth County Superior Court.

Heard in the Court of Appeals 19 February 2014.

Attorney General Roy Cooper, by Special Deputy Attorney
General James M. Stanley, Jr., for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Kathleen M. Joyce, for defendant-appellant.

BRYANT, Judge.

Where the State presents sufficient evidence of each

element of an offense, a motion to dismiss is properly denied.

Where defendant can show no prejudice from irrelevant evidence

admitted during an habitual felon proceeding, any error

therefrom is harmless.

On 23 February 2011, Officer Neff of the Winston-Salem

Police Department observed a car speeding and crossing the
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double-yellow center line while driving on Silas Creek Parkway

around 10:00 p.m. Officer Neff initiated a traffic stop of the

car and noticed that the driver, defendant Christopher Leon

Blakney, smelled of alcohol and had glassy, bloodshot eyes.

Officer Neff arrested defendant under suspicion of driving while

impaired and called for assistance; Officer Allen responded.

While searching defendant’s car, Officer Allen found

marijuana under the center armrest. A large amount of cash was

found on the car’s front floorboard along with a glass Mason jar

containing marijuana residue. A digital scale and batteries

were also found underneath the front seats. A white shopping

bag containing a box of sandwich baggies and a glass Mason jar

of marijuana was found in the trunk, along with a second bag

containing additional marijuana packaging supplies. Four “dime

bags” of marijuana were also found in the trunk.1 A total of

84.8 grams (2.99 ounces) of marijuana was recovered from

defendant’s car.

1
When asked to clarify what he meant when he said “dime bag,”
Officer Allen testified that a “dime bag” is “a small plastic
bag often used in the packaging for sale of illegal narcotics.
So those who sell these -- sell narcotics break their product
down to get it -- they get it in large shipments and break it
down into the smaller sellable items, packages for easy
transactions, very small scale and discrete transactions.”
 -3-
On 16 May 2011, a Forsyth County Grand Jury indicted

defendant for possession with intent to sell or deliver

marijuana, possession of drug paraphernalia, driving while

impaired, and driving while license revoked. Defendant was also

indicted as an habitual felon.

On 13 February 2013, a jury found defendant guilty of

possession with intent to sell or deliver marijuana, possession

of drug paraphernalia, and driving while license revoked.

Defendant was found not guilty of driving while impaired. The

jury also found defendant guilty of having attained the status

of an habitual felon. The trial court sentenced defendant to 88

to 115 months in prison. Defendant appeals.

____________________________

On appeal, defendant argues that the trial court erred in:

(I) denying defendant’s motion to dismiss; and (II) admitting

evidence of an additional felony conviction during defendant’s

habitual felon proceeding.

I.

Defendant first argues that the trial court erred in

denying his motion to dismiss at the close of all the evidence.

We disagree.

We review the trial court's denial of a
motion to dismiss de novo. A motion to
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dismiss for insufficient evidence is
properly denied if there is substantial
evidence (1) of each essential element of
the offense charged, or of a lesser offense
included therein, and (2) of defendant's
being the perpetrator of such offense.
Substantial evidence is such relevant
evidence as a reasonable mind might accept
as adequate to support a conclusion. All
evidence, both competent and incompetent,
and any reasonable inferences drawn
therefrom, must be considered in the light
most favorable to the State. Additionally,
circumstantial evidence may be sufficient to
withstand a motion to dismiss when a
reasonable inference of defendant's guilt
may be drawn from the circumstances. If so,
it is the jury's duty to determine if the
defendant is actually guilty.

State v. Burton, ___ N.C. App. ___, ___, 735 S.E.2d 400, 404

(2012) (citations and quotations omitted). “The State is

entitled to every reasonable inference to be drawn from the

evidence. Contradictions and discrepancies do not warrant

dismissal of the case; rather, they are for the jury to resolve.

Defendant's evidence, unless favorable to the State, is not to

be taken into consideration.” State v. Franklin, 327 N.C. 162,

172, 393 S.E.2d 781, 787 (1990) (citations omitted).

Defendant argues that the trial court erred in denying his

motion to dismiss because the State failed to prove that

defendant intended to sell or deliver marijuana. Specifically,

defendant contends the State failed to prove defendant’s intent
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to sell or deliver marijuana because the amount of marijuana

found in defendant’s car was too small to be the “substantial

amount” required for a possession with intent to sell or deliver

marijuana conviction.

Pursuant to North Carolina General Statutes, section 90-95,

the offense of possession with intent to sell or deliver has

three elements: (1) possession; (2) of a controlled substance;

with (3) the intent to sell or deliver that controlled

substance. N.C. Gen. Stat. § 90-95(a)(1) (2013). The State may

demonstrate intent through direct or circumstantial evidence.

State v. Jackson, 145 N.C. App. 86, 89—90, 550 S.E.2d 225, 229

(2001). Although the "quantity of the controlled substance

alone may suffice to support the inference of an intent to

transfer, sell or deliver," it must be a substantial amount.

State v. Morgan, 329 N.C. 654, 659—60, 406 S.E.2d 833, 835—36

(1991). "[T]he intent to sell or distribute may be inferred

from (1) the packaging, labeling, and storage of the controlled

substance, (2) the defendant's activities, (3) the quantity

found, and (4) the presence of cash or drug paraphernalia."

State v. Nettles, 170 N.C. App. 100, 106, 612 S.E.2d 172, 176

(2005).
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The State concedes that lab testing was not completed on

the marijuana collected from defendant’s car. Defendant argues

that because no testing was done, the total amount of marijuana

collected (84.8 grams) is not accurate because this weight

included marijuana seeds, stems, and other material that should

have been excluded before weighing. Defendant further argues

that even if the weight of the marijuana (84.8 grams) is

accurate, such a small amount is consistent with personal use,

rather than for sale or delivery. Defendant cites State v.

Wiggins, 33 N.C. App. 291, 235 S.E.2d 265 (1977), and State v.

Wilkins, 208 N.C. App. 729, 703 S.E.2d 807 (2010), in support of

his argument.

In Wiggins, the defendant was convicted of possession with

intent to sell or deliver marijuana after a total of 215.5 grams

of marijuana was found growing in and around his home. This

Court found that “this quantity alone, without some additional

evidence, is not sufficient to raise an inference that the

marijuana was for the purpose of distribution.” Wiggins, 33

N.C. App. at 294—95, 235 S.E.2d at 268 (citations omitted).

In Wilkins, the defendant was stopped and arrested on

several outstanding warrants. During a pat-down of the

defendant, officers found three small bags of marijuana weighing
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a total of 1.89 grams and $1264.00 cash in small denominations.

The defendant was convicted of possession with intent to sell or

deliver marijuana and manufacturing marijuana. On appeal, this

Court reversed the defendant’s conviction for possession with

intent to sell or deliver marijuana, noting that “[t]he evidence

in this case, viewed in the light most favorable to the State,

indicates that defendant was a drug user, not a drug seller.”

Wilkins, 208 N.C. App. at 733, 703 S.E.2d at 811.

We find Wiggins and Wilkins to be inapposite to the instant

case. The State presented evidence that defendant’s car

contained a total of 84.8 grams of marijuana found in the body

and trunk of the car, and the marijuana was found in multiple

containers including two “previously vacuum sealed bags,” two

sandwich bags, four “dime bags,” and five other types of bags.

Marijuana was also found in two glass Mason jars. A box of

sandwich bags was found in the trunk, and digital scales were

found underneath the front seats of the car. This evidence

showed not only a significant quantity of marijuana, but the

manner in which the marijuana was packaged (such as four “dime

bags”) raised more than an inference that defendant intended to

sell or deliver the marijuana. Further, the presence of items

commonly used in packaging and weighing drugs for sale — a box
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of sandwich bags and digital scales — along with a large

quantity of cash in small denominations provided additional

evidence that defendant intended to sell or deliver marijuana,

as opposed to merely possessing it for his own personal use as

was determined to be the case in Wiggins and Wilkins.

Therefore, taking the evidence in the light most favorable to

the State, sufficient evidence of possession with intent to sell

or deliver marijuana was presented to survive defendant’s motion

to dismiss. See State v. Baxter, 285 N.C. 735, 738, 208 S.E.2d

696, 698 (1974) (“The jury could reasonably infer an intent to

distribute from the amount of the substance found, the manner in

which it was packaged and the presence of other packaging

materials.”), overruled in part on other grounds by State v.

Childers, 41 N.C. App. 729, 255 S.E.2d 654 (1979). Defendant’s

argument is overruled.

II.

Defendant next argues that the trial court erred in

admitting evidence of an additional felony conviction at

defendant’s habitual felon proceeding. Specifically, defendant

contends that by not redacting a second consolidated felony

offense contained within a judgment offered into evidence by the
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State, the trial court committed error pursuant to Rules 401,

403, 404(b), and 609. We disagree.

On appeal, in reviewing a trial court’s rulings under Rule

401 and 403, this Court has held that:

Although the trial court's rulings on
relevancy technically are not discretionary
and therefore are not reviewed under the
abuse of discretion standard applicable to
Rule 403, such rulings are given great
deference on appeal. Because the trial court
is better situated to evaluate whether a
particular piece of evidence tends to make
the existence of a fact of consequence more
or less probable, the appropriate standard
of review for a trial court's ruling on
relevancy pursuant to Rule 401 is not as
deferential as the 'abuse of discretion'
standard which applies to rulings made
pursuant to Rule 403.

State v. Tadeja, 191 N.C. App. 439, 444, 664 S.E.2d 402, 407

(2008) (citation omitted). Evidence is relevant if it has "any

tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence." N.C. Gen.

Stat. § 8C-1, Rule 401 (2013). "[E]vidence is relevant if it

has any logical tendency, however slight, to prove a fact in

issue in the case." State v. Hannah, 312 N.C. 286, 294, 322

S.E.2d 148, 154 (1984) (citation omitted). "Although relevant,

evidence may be excluded if its probative value is substantially
 -10-
outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative

evidence." N.C. Gen. Stat. § 8C-1, Rule 403 (2013).

North Carolina General Statutes, section 14-7.1, states

that a person may be charged as an habitual felon if he “has

been convicted of or pled guilty to three felony offenses.”

N.C. Gen. Stat. § 14-7.1 (2013). For an habitual felon charge,

the prior felony convictions of a defendant may be proven by

“stipulation of the parties or by the original or a certified

copy of the court record of the prior [felony] conviction

[pursuant to] N.C. Gen. Stat. § 14-7.4.” State v. Gant, 153

N.C. App. 136, 143, 568 S.E.2d 909, 913 (2002). "[T]he

preferred method for proving a prior conviction includes the

introduction of the judgment itself into evidence." State v.

Maynard, 311 N.C. 1, 26, 316 S.E.2d 197, 211 (1984) (citation

omitted).

The State, in prosecuting the habitual felon charge against

defendant, introduced into evidence certified copies of three

prior judgments: judgment for possession with intent to

sell/deliver cocaine entered on 8 May 1997; judgment for

possession with intent to manufacture, sell and deliver cocaine
 -11-
entered on 8 October 1998; and judgment for possession with

intent to sell or deliver marijuana entered on 8 May 2003. Each

judgment included a copy of the corresponding plea transcript.

The judgment which defendant challenges, entered 8 May 1997,

involved two felony convictions, each for possession with intent

to sell or deliver cocaine, which had been consolidated into one

judgment. Defendant argues that the trial court’s refusal to

redact one of the two felony convictions attached to the

judgment was highly prejudicial to him. We disagree. While the

additional felony conviction was irrelevant in determining

whether defendant was an habitual felon, defendant has not

demonstrated how this evidence prejudiced him.

Defendant bears the burden of proving the
testimony was erroneously admitted and he
was prejudiced by the erroneous admission.
The admission of evidence which is
technically inadmissible will be treated as
harmless unless prejudice is shown such that
a different result likely would have ensued
had the evidence been excluded.

State v. Moses, 350 N.C. 741, 762, 517 S.E.2d 853, 867 (1999)

(citations and quotation omitted).

In admitting the judgments into evidence, the trial court

denied defendant’s redaction request as to the consolidated

judgment, noting that “[defendant] pled to whatever he pled to.

It was just consolidated.” The trial court then gave jury
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instructions as to the habitual felon charge which directed and

limited the jury’s consideration of the evidence to three

specific felony convictions only. As such, the record reflects

nothing to indicate that defendant was prejudiced by the

inclusion of the additional conviction. Moreover, defendant has

not challenged the validity of the prior convictions, the plea

transcripts, or the resulting judgments. “Given the

overwhelming and uncontradicted evidence of the three felony

convictions, there is essentially no likelihood that a different

result . . . would have ensued if the trial court had redacted

[the additional conviction].” State v. Ross, 207 N.C. App. 379,

400, 700 S.E.2d 412, 426 (2010) (citation, quotation and bracket

omitted). Accordingly, defendant’s argument is overruled.

No error.

Judges STEPHENS and DILLON concur.