State v. Glisson , 251 N.C. App. 844 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-426
Filed: 7 February 2017
Jones County, Nos. 12 CRS 50869-72, 78-79
STATE OF NORTH CAROLINA,
v.
DEBORAH LYNN GLISSON, Defendant.
Appeal by Defendant from judgment entered 12 September 2014 by Judge
Kenneth F. Crow in Jones County Superior Court. Heard in the Court of Appeals 2
November 2016.
Attorney General Joshua H. Stein, by Assistant Attorney General David D.
Lennon, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine
Jane Allen, for Defendant-Appellant.
INMAN, Judge.
Deborah Lynn Glisson (“Defendant”) appeals from a judgment finding her
guilty of, inter alia, felonious conspiracy to traffic opium by sale and delivery and
possession of oxycodone with intent to sell and deliver. Defendant contends the trial
court erred by denying her motion to dismiss the conspiracy charge related to the
controlled buy on 13 September 2012 for insufficiency of the evidence. After careful
review, we hold that Defendant has failed to demonstrate error.
I. Factual and Procedural History
STATE V. GLISSON
Opinion of the Court
Defendant was indicted on 5 August 2013, 28 April 2014, and 4 August 2014
for eighteen drug-related offenses arising from three separate controlled buys
arranged by the Jones County Sheriff’s Office between August and December 2012.
The evidence at trial tended to show the following:
On or about August 2012, an informant with the Jones County Sheriff’s Office
contacted Detective Timothy Corey (“Detective Corey”) and informed him that a
couple, believed to be husband and wife, were selling oxycodone. At Detective Corey’s
direction, the informant arranged for a controlled buy from Defendant.
On 16 August 2012, Detective Corey and the informant met Defendant, who
was accompanied by James Adkins (“Adkins”), in a parking lot in Pottersville, North
Carolina. Defendant and Adkins arrived in a Ford Focus, which Defendant was
driving. Defendant exited the Ford and walked over to the informant’s vehicle to talk
with him. The informant introduced Detective Corey as a family member from out of
town who wanted to buy oxycodone. After a short conversation, Detective Corey
requested oxycodone and paid Defendant $140. Defendant then turned to the
passenger side front seat of the Ford and spoke with Adkins, who produced a pill
bottle. Defendant counted out a number of pills and gave them to Detective Corey.
The pills were later confirmed to be oxycodone.
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STATE V. GLISSON
Opinion of the Court
Detective Corey and the informant then arranged for a second controlled buy
from Defendant. On or about 13 September 2012,1 Detective Corey met the informant
in an unfinished subdivision, and shortly thereafter, at dusk, Defendant and Adkins
arrived in the same Ford Focus Defendant had driven to the initial controlled buy.
Defendant told Detective Corey that she did not like the meeting location “because
it’s a subdivision that, you know, she don’t know where anybody is coming from.”
Defendant gave Detective Corey twenty oxycodone pills in exchange for $80.
Detective Corey set up a third controlled buy to take place on 7 December 2012
in the same unfinished subdivision as the second controlled buy. Defendant told
Detective Corey that she had to pick up Adkins before the meeting. Detective Corey
met Defendant and Adkins and paid Defendant $200. Adkins then handed Detective
Corey thirty-four oxycodone pills. Defendant was arrested immediately after
delivering the pills to Detective Corey.
At the close of the State’s evidence, Defendant made an oral motion to dismiss
on all charges. Defendant’s trial counsel argued that the State’s evidence and testing
methods were insufficient to satisfy the minimum weight requirement element for
the charge of trafficking opium. The trial court dismissed one trafficking in opium
by possession charge and reduced the other two charges from trafficking in opium to
1 There were several errors made at trial as to the date of the second controlled buy. However,
defense counsel raised no objections and did not offer an alibi defense for the events of 13 September
2012 or any of the other mistaken dates.
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STATE V. GLISSON
Opinion of the Court
sale and delivery of opium. Defendant chose not to testify and presented no evidence.
Her counsel renewed her general motion to dismiss all remaining charges based on
the insufficiency of the evidence. The trial court denied the motion to dismiss.
Following a meeting with counsel in chambers, the trial court dismissed the
trafficking allegations in the conspiracy charges, reducing those charges to conspiracy
to sell opium, conspiracy to deliver opium, and conspiracy to possess with intent to
sell or deliver opium. The trial court reviewed the jury instructions with Defendant’s
trial counsel, who agreed with the proposed instructions regarding each conspiracy
charge.
The jury returned a guilty verdict on all remaining charges, except that the
jury found the lesser included offense of knowingly (rather than intentionally)
maintaining a motor vehicle to possess and sell oxycodone on the dates of all three
transactions. Defendant gave oral notice of appeal.
II. Analysis
On appeal, Defendant challenges the sufficiency of the evidence for the charge
of felonious conspiracy to traffic opium by sale and delivery and possession of
oxycodone with intent to sell and deliver related to the events of the second controlled
buy on 13 September 2012. Defendant contends the State failed to present evidence,
aside from Adkins’s mere presence at the transaction on 13 September 2012, that
Defendant conspired with Adkins to traffic opium on that date.
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STATE V. GLISSON
Opinion of the Court
A. Appellate Jurisdiction
The State first contends that Defendant failed to preserve this issue for appeal
because her counsel argued before the trial court only that the State had presented
insufficient evidence of the weight of the pills involved in each transaction. We
disagree, based upon the record before us and our precedent holding that a general
motion to dismiss for insufficiency of the evidence preserves all issues regarding the
insufficiency of the evidence, even those issues not specifically argued before the trial
court. State v. Pender, ___ N.C. App. ___, 776 S.E.2d 352, 360 (2015) (holding that
although trial counsel presented a specific argument addressing only two elements of
two charges, the defendant’s general motion to dismiss “preserved his insufficient
evidence arguments with respect to all of his convictions,”); State v. Mueller, 184 N.C.
App. 553, 559, 647 S.E.2d 440, 446 (2007) (holding that although trial counsel
presented a specific argument addressing only five charges, the defendant’s general
motion to dismiss preserved arguments regarding fourteen charges on appeal).
Defendant’s motion to dismiss required the trial court to consider whether the
evidence was sufficient to support each element of each charged offense. State v.
Nabors, 365 N.C. 306, 312, 718 S.E.2d 623, 626 (2011). The trial court acknowledged
Defendant’s contention that the State “simply failed to offer sufficient evidence on
each and every count as to justify these cases to survive a motion to dismiss.” The
trial court referred to the motion as “global” and “prophylactic,” acknowledging on
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STATE V. GLISSON
Opinion of the Court
the record that Defendant’s motion was broader than the single oral argument
presented. In ruling on the motion to dismiss, the trial court stated that “the State
has offered sufficient evidence on each and every element of all the surviving charges
to justify these cases being advanced to the jury.” Counsel’s oral argument
challenging a single aspect of the evidence does not preclude Defendant from arguing
other insufficiencies in the evidence on appeal. So we will address the merits of
Defendant’s argument challenging the sufficiency of the evidence to support the
conspiracy charge.
B. Standard of Review
A trial court, on a motion to dismiss for insufficient evidence, “must determine
only whether there is substantial evidence of each essential element of the offense
charged and of the defendant being the perpetrator of the offense.” State v. Olson,
330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992) (citation omitted). “Whether evidence
presented constitutes substantial evidence is a question of law for the court” and is
reviewed de novo. State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991) (citation
omitted). “Substantial evidence is relevant evidence that a reasonable mind might
accept as adequate to support a conclusion.” Olson, 330 N.C. at 564, 411 S.E.2d at
595 (citation omitted). In reviewing the denial of a motion to dismiss for insufficiency
of the evidence, “we must view the evidence in the light most favorable to the State,
giving the State the benefit of all reasonable inferences.” State v. Benson, 331 N.C.
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STATE V. GLISSON
Opinion of the Court
537, 544, 417 S.E.2d 756, 761 (1992) (citation omitted). “Any contradictions or
discrepancies in the evidence are for the jury to resolve and do not warrant dismissal.”
Olson, 330 N.C. at 564, 411 S.E.2d at 595 (citation omitted).
C. Sufficiency of the Evidence
“A criminal conspiracy is an agreement between two or more people to do an
unlawful act or to do a lawful act in an unlawful way.” State v. Bell, 311 N.C. 131,
141, 316 S.E.2d 611, 617 (1984) (citation omitted). To prove the crime of conspiracy,
“the State need not prove an express agreement;” rather, “evidence tending to show
a mutual, implied understanding will suffice.” State v. Morgan, 329 N.C. 654, 658,
406 S.E.2d 833, 835 (1991) (citation omitted). “The existence of a conspiracy may be
established by direct or circumstantial evidence, although it is generally established
by a number of indefinite acts, each of which, standing alone, might have little weight,
but, taken collectively, they point unerringly to the existence of a conspiracy.” State
v. Worthington, 84 N.C. App. 150, 162, 352 S.E.2d 695, 703 (1987) (internal quotation
marks and citations omitted). “In ‘borderline’ or close cases, our courts have
consistently expressed a preference for submitting issues to the jury, both in reliance
on the common sense and fairness of the twelve and to avoid unnecessary appeals.”
State v. Hamilton, 77 N.C. App. 506, 512, 335 S.E.2d 506, 510 (1985) (citations
omitted).
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STATE V. GLISSON
Opinion of the Court
Here, the State presented evidence of indefinite acts amounting to substantial
evidence that Defendant conspired with Adkins to traffic opium on 13 September
2012. Defendant brought Adkins in her vehicle to the unfinished subdivision just as
she had brought Atkins with her for the initial transaction with Detective Corey, and
just as she would bring Adkins with her again for the third transaction in December.
The area of the exchange was one Defendant did not like and the sale took place at
or near dark. The drugs were maintained in the same vehicle as Adkins, and
Defendant exchanged the drugs and counted the money in front of him. From this, it
would be reasonable for the jury to infer that Adkins was present at Defendant’s
behest to provide safety and comfort to Defendant during the transaction. See State
v. Jackson, 103 N.C. App. 239, 244, 405 S.E.2d 354, 357 (1991) (“[I]t is reasonable for
the jury to infer that the defendant was present merely to ensure the safety of the
cocaine. This evidence, while circumstantial in nature . . . allowed the state to
withstand the defendant’s motion to dismiss [a conspiracy charge.]”). This evidence
was sufficient for the State to withstand Defendant’s motion to dismiss.
D. Single Conspiracy
Defendant argues that evidence of Adkins’ participation in the other two
transactions cannot be considered to support the separate conspiracy charge related
to the 13 September 2012 transaction, but instead establishes a single conspiracy to
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STATE V. GLISSON
Opinion of the Court
engage in three transactions, so that Defendant could be convicted of only one
conspiracy charge. We disagree.
“There is no simple test for determining whether single or multiple
conspiracies are involved: the essential question is the nature of the agreement or
agreements, . . . factors such as time intervals, participants, objectives, and number
of meetings all must be considered.” State v. Rozier, 69 N.C. App. 38, 52, 316 S.E.2d
893, 902 (1984). By electing to charge separate conspiracies, the State “must prove
not only the existence of at least two agreements but also that they were separate.”
Id. at 53, 316 S.E.2d at 902 (citation omitted). “Although the offense of conspiracy is
complete upon formation of the unlawful agreement, the offense continues until the
conspiracy comes to fruition or is abandoned.” State v. Medlin, 86 N.C. App. 114, 122,
357 S.E.2d 174, 179 (1987) (citation omitted). Ultimately, “[t]he question of whether
multiple agreements constitute a single conspiracy or multiple conspiracies is a
question of fact for the jury.” State v. Tirado, 358 N.C. 551, 577, 599 S.E.2d 515, 533
(2004) (citing Rozier, 69 N.C. App. at 54, 316 S.E.2d at 903).
Here, the evidence in the record, including the evidence from the other two
controlled buys, supports the existence of multiple separate conspiracies.
Approximately one month passed between the first and second controlled buys, and
approximately three months passed between the second and third controlled buys.
There was no evidence to suggest that Defendant planned the transactions as a
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STATE V. GLISSON
Opinion of the Court
series. Rather, the informant or Detective Corey initiated each transaction. The
evidence was sufficient to support a reasonable inference that Defendant and Atkins
planned each transaction in response to separate, individual requests by the buyers
and completed each plan upon the transfer of money for oxycodone. While the
objectives of each controlled buy may have been similar—to purchase oxycodone—the
agreed upon amount differed and none of the transactions contemplated future
transactions.
In light of the foregoing, we conclude that the evidence in the record supports
the charges of multiple conspiracies. We hold that Defendant has not met her burden
of establishing that the trial court erred in denying her motion to dismiss for
insufficiency of the evidence on the multiple conspiracy charges.
III. Conclusion
For the above mentioned reasons, we hold the trial court did not err by denying
Defendant’s motion to dismiss and submitting to the jury the charge of conspiracy to
traffic a Schedule II controlled substance as related to the 13 September 2012
transaction.
NO ERROR.
Chief Judge MCGEE and Judge DAVIS concur.
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