State v. Davis ( 2014 )

NO. COA13-1092
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
STATE OF NORTH CAROLINA
v. Jackson County
Nos. 11 CRS 51412, 51413
BILLY RAY DAVIS
Appeal by defendant from judgments entered 30 May 2013 by
Judge J. Thomas Davis in Jackson County Superior Court. Heard
in the Court of Appeals 23 April 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General June S. Ferrell, for the State.
David L. Neal for defendant.
McCULLOUGH, Judge.
Billy Ray Davis (“defendant”) appeals from judgments
entered upon his convictions for trafficking in methamphetamine
by possession, trafficking in methamphetamine by manufacture,
conspiring to traffic in methamphetamine, manufacturing
methamphetamine, possession of an immediate precursor chemical
to methamphetamine, and possession of drug paraphernalia. For
the following reasons, we find no error.
I. Background
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On 14 December 2011, a Jackson County grand jury indicted
defendant on charges of trafficking in methamphetamine by
possession, trafficking in methamphetamine by manufacture,
conspiring to traffic in methamphetamine by manufacture,
manufacturing methamphetamine, possession of an immediate
precursor chemical to methamphetamine, and possession of drug
paraphernalia. Defendant’s case then came on for jury trial in
Jackson County Superior Court on 28 May 2013, the Honorable J.
Thomas Davis, Judge presiding.
The evidence offered during the presentation of the State’s
case tended to show the following: On 29 July 2011, Jim Henry,
a senior K-9 deputy sheriff with the Jackson County Sheriff’s
Office, responded to an alert of possible drug activity by
subjects in a small gray Dodge pickup with a white camper cover
in the Greens Creek area off the south side of Highway 441.
Dep. Henry located the vehicle upon arrival to the area,
observed that no one was around, and proceeded down a trail at
the rear of the vehicle leading into the woods along the creek.
Dep. Henry recalled that the vegetation on the trail was crushed
down as if someone had recently walked over it.
Approximately 20 to 30 yards down the trail, Dep. Henry
heard two individuals talking and crawled to a position where he
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could see what was going on. From his position on the bank,
Dep. Henry observed a male and a female, later identified as
defendant and Keisha Maki, on a grassy area in the middle of the
creek near a blanket that was covered with bags and other
various items. From his position on the bank, Dep. Henry
observed Maki use tongs to lower a bottle into the creek. At
that time, defendant instructed Maki to “[p]ut the glasses over
[her] eyes, [because she didn’t] want that stuff in [her] eyes.”
Maki then removed the bottle from the creek and the bottle began
smoking.
After observing defendant and Maki for approximately ten
minutes, Dep. Henry retreated up the trail to call his superior
officer and Lee Tritt, a Special Agent with the State Bureau of
Investigation. Special Agent Tritt arrived shortly thereafter
and met Dep. Henry on the trial. He and Dep. Henry then
proceeded back down the trail to the area overlooking the creek
to observe what was going on.
Dep. Henry and Special Agent Tritt observed defendant and
Maki for approximately thirty minutes before Maki noticed them
and alerted defendant. During this time, defendant and Maki
were moving back and forth around the site where the blanket was
laid out. Dep. Henry recalled that they were moving bottles
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back and forth. Special Agent Tritt testified that he became
curious about a bottle sitting near the edge of the creek
because it was obvious that it did not have a liquid like Coke
or Sprite in it, but rather some type of solid substance.
Approximately thirty minutes after Special Agent Tritt
arrived, Maki entered the creek and noticed they were being
watched. At that point, Maki motioned for defendant to come
over to her and alerted him of Dep. Henry and Special Agent
Tritt’s presence. Dep. Henry and Special Agent Tritt then came
down the bank toward defendant and Maki and identified
themselves as law enforcement. At that instant, Maki, who had
backed out of the creek with defendant, hurriedly moved the
bottle sitting at the edge of the creek into the creek near a
concrete bridge support. The bottle immediately began to react
with the water and started to smoke.
Special Agent Tritt was aware that the smoke from
methamphetamine production was corrosive and dangerous and
removed Maki from the smoky area while Dep. Henry apprehended
defendant. Both defendant and Maki were taken into custody.
Dep. Henry recalled that as he took defendant into custody,
defendant stated several times that “[i]t wasn’t me, I was at
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Food Lion, I wasn’t making dope[,]” indicating he was aware what
was going on.
After defendant and Maki were in custody, law enforcement
secured the area. Among the items recovered were the following:
a handbag that was found to contain a syringe and a white
substance wrapped in a coffee filter, a duffle bag in which a
clear two liter bottle containing white and pink granular
material, gray metal pieces, and a clear liquid was found, empty
boxes and blister packs of pseudoephedrine, a blister pack still
containing pseudoephedrine, an empty pack of AA Energizer
lithium batteries, a AA Energizer lithium battery that someone
had cut the top off of and removed the lithium, iodized salt,
sodium hydroxide, drain opener, funnels, tubing, coffee filters,
syringes, and various items of clothing. The plastic bottle
Maki placed into the creek was also recovered. There was white
and pink granular material in the burned bottle.
Testing of the white substance found wrapped in the coffee
filter inside the handbag revealed the substance to be .8 grams
of methamphetamine. Testing of the clear liquid removed from
the bottle found inside the duffle bag revealed the liquid,
weighing 73.6 grams, contained methamphetamine.
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At trial, officers testified about the methamphetamine
production process and explained that the remnants of packaging
of four out of five ingredients – drain cleaner, sodium
hydroxide, lithium batteries, and pseudoephedrine - used to
manufacture methamphetamine using the “shake and bake” or “one
pot” method were recovered at the scene, as well as many of the
items used to manufacture methamphetamine. Testimony also
explained that lithium metal is water reactive and can ignite
when it is exposed to moisture. From the totality of everything
found, Special Agent Michael Piwowar, a forensic scientist with
the North Carolina State Crime Lab, “confirmed that it was a
methamphetamine one pot reaction going on.”
At the close of the State’s evidence, defendant moved to
dismiss all charges. Defendant focused his argument in support
of dismissal on the trafficking charges, arguing the entire
weight of the liquid recovered could not be considered because
it was at an intermediate stage in the methamphetamine
production process. After clarifying that the pseudoephedrine
had already been converted to methamphetamine in the mixture and
it was just a matter of extracting the methamphetamine from the
liquid, the trial court denied defendant’s motion to dismiss the
charges.
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Defendant did not call any witnesses in his defense, but
submitted three exhibits that were admitted without objection.
Defendant then renewed his motion to dismiss all charges, which
the trial court denied.
On 30 May 2013, the jury returned verdicts finding
defendant guilty on all charges. The trial court consolidated
defendant’s convictions between two judgments and sentenced
defendant to consecutive terms totaling 153 months to 193 months
imprisonment. Defendant was further ordered to pay costs, fees,
restitution, and a $50,000 fine. Defendant gave notice of
appeal in open court.
II. Discussion
Motion to Dismiss
In the first issue raised on appeal, defendant contends the
trial court erred in denying his motion to dismiss the charges
for insufficiency of the evidence made at the close of the
State’s evidence and renewed at the close of all the evidence.
Specifically, defendant contends that absent an acting in
concert instruction the State failed to offer sufficient
evidence that he manufactured or possessed methamphetamine.
Defendant also contends the State failed to offer sufficient
evidence of a conspiracy.
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“This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007). “‘Upon defendant’s motion for dismissal,
the question for the Court 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 defendant’s
being the perpetrator of such offense. If so, the motion is
properly denied.’” State v. Fritsch, 351 N.C. 373, 378, 526
S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430
S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed.
2d 150 (2000). “Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d
164, 169 (1980).
“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.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d
211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818
(1995).
Circumstantial evidence may withstand a
motion to dismiss and support a conviction
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even when the evidence does not rule out
every hypothesis of innocence. If the
evidence presented is circumstantial, the
court must consider whether a reasonable
inference of defendant’s guilt may be drawn
from the circumstances. Once the court
decides that a reasonable inference of
defendant’s guilt may be drawn from the
circumstances, then it is for the jury to
decide whether the facts, taken singly or in
combination, satisfy [it] beyond a
reasonable doubt that the defendant is
actually guilty.
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation, quotation
marks, and emphasis omitted).
Manufacturing Charges
Defendant first argues there was insufficient evidence to
support the manufacturing methamphetamine and trafficking in
methamphetamine by manufacture charges.
Crucial to defendant’s argument, the sufficiency of the
evidence to support defendant’s conviction must be reviewed with
respect to the theory of guilt presented to the jury. See State
v. Sullivan, 216 N.C. App. 495, 503, 717 S.E.2d 581, 586-87
(2011) (citing State v. Smith, 65 N.C. App. 770, 310 S.E.2d 115,
modified and aff'd, 311 N.C. 145, 316 S.E.2d 75 (1984)), disc.
rev. denied, 366 N.C. 229, 726 S.E.2d 839 (2012); Presnell v.
Georgia, 439 U.S. 14, 16, 58 L. Ed. 2d 207, 211 (1978). In this
case, the jury was not instructed on acting in concert.
Consequently, defendant’s convictions may be upheld only if
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there is evidence he committed the offenses. See State v.
McCoy, 79 N.C. App. 273, 274, 339 S.E.2d 419, 420 (1986) (“The
court failed to instruct on acting in concert. Accordingly,
defendant's conviction may be upheld only if the evidence
supports a finding that he personally committed each element of
the offense.”).
At trial, testimony was presented about the steps to
produce methamphetamine using a “shake and bake” or “one pot”
method. Defendant now contends the trial court erred in denying
his motion to dismiss the manufacturing-related charges because
there was no evidence that he performed any of the steps
identified by law enforcement. We disagree.
As the State points out, this Court has previously
addressed whether a defendant’s presence at a place where a
controlled substance is being manufactured is sufficient to
withstand a motion for dismissal of manufacturing charges. In
State v. Shufford, this Court addressed whether a defendant’s
presence in a house where marijuana was being manufactured was
sufficient to withstand a motion for dismissal. State v.
Shufford, 34 N.C. App. 115, 117-18, 237 S.E.2d 481, 483 (1977).
Relying on State v. Adams, 191 N.C. 526, 132 S.E. 281 (1926), a
case involving an illegal whiskey still, this Court in Shufford
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held the defendant’s presence, along with other evidence that
marijuana was being manufactured in the house, was sufficient to
overcome a motion for dismissal. Shufford, 34 N.C. App. at 118,
237 S.E.2d at 483 (“It has been held that presence at a place
where illegal whiskey is being manufactured, along with other
supporting evidence, is sufficient to overcome a defendant's
motion for nonsuit.”) Furthermore, in Shufford, this Court
noted that in possession cases, “[t]he State may overcome a
motion for a nonsuit by presenting evidence which places the
accused ‘within such close juxtaposition to the narcotic drugs
as to justify the jury in concluding that the same was in his
possession.’” Id. at 119, 237 S.E.2d at 483 (quoting State v.
Allen, 279 N.C. 406, 411-12, 183 S.E.2d 680, 684 (1971)). This
Court then “perceive[d] no reason why the principle of ‘close
juxtaposition’ should not apply to manufacturing of controlled
substances as well as to their possession.” Id. at 119, 237
S.E.2d at 483-84.
In the present case, we hold a reasonable inference of
defendant’s guilt can be drawn from defendant’s presence with
Maki at the scene for the duration of the time law enforcement
observed, approximately 40 minutes, along with the evidence
recovered from the scene that was consistent with the production
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of methamphetamine, testimony that defendant and Maki were back
and forth in the area moving bottles, and testimony that
defendant gave instructions to Maki to keep the smoke out of her
eyes. Thus, the evidence was sufficient to withstand
defendant’s motion to dismiss the manufacturing-related charges
and the trial court did not err.
Possession Charges
Defendant next argues there was insufficient evidence to
support the trafficking in methamphetamine by possession and
possession of drug paraphernalia charges.
As previously mentioned, law enforcement searched the area
where defendant and Maki were observed subsequent to taking them
into custody. The search of items found at the scene resulted
in the recovery of .8 grams of methamphetamine, a bottle of a
liquid weighing 73.6 grams that tested positive for
methamphetamine, and syringes. Defendant correctly contends
that because none of the above items were found on his person,
or in any property linked directly to him, the State was
required to prove constructive possession. Defendant, however,
further contends there was insufficient evidence of constructive
possession. We disagree.
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“Constructive possession exists when a person, while not
having actual possession of the controlled substance, has the
intent and capability to maintain control and dominion over a
controlled substance.” State v. Neal, 109 N.C. App. 684, 686,
428 S.E.2d 287, 289 (1993). “As the terms ‘intent’ and
‘capability’ suggest, constructive possession depends on the
totality of circumstances in each case. No single factor
controls, but ordinarily the question will be for the jury.”
State v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986).
In this case, the evidence tended to show that the .8 grams
of methamphetamine and a syringe were found in a camouflage
handbag at the scene. The handbag also contained a wallet,
cosmetics, a metal spoon, and a Social Security card with Maki’s
name on it. The 73.6 grams of liquid containing methamphetamine
was in a clear two liter bottle in a closed purple duffle bag
found at the scene. Various clothing items were also in the
duffle bag. Both the handbag and the duffle bag were near the
other items recovered on the blanket laid out near the creek in
the area where defendant and Maki were moving back and forth.
In arguing the evidence was insufficient to show
constructive possession by defendant, defendant contends there
is nothing indicating defendant had the intent and capability to
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control the methamphetamine, syringes, or liquid containing
methamphetamine because the evidence tends to show that the bags
belonged to Maki. While we agree that the evidence tends to
show the handbag containing the .8 grams of methamphetamine and
syringe belonged to Maki, there is no evidence that the duffle
bag or other items were Maki’s. Defendant asserts that the
clothes in the purple duffle bag were women’s clothes; yet,
defendant’s assertion is a mischaracterization of the evidence.
There is no indication in the evidence that the clothes found
with the liquid in the duffle bag were women’s clothes. In
fact, when questioned whether there was anything in the purple
duffle bag that would identify who it belonged to, Special Agent
Piwowar simply stated he just found clothes and the bottle.
Reviewing the totality of the circumstances, we find there
was sufficient evidence of constructive possession to present
the possession-related charges against defendant to the jury.
First, defendant and Maki were the only persons present during
the 40 minutes that law enforcement observed. Second, both
defendant and Maki moved freely around the site where all the
belongings and items were laid out on the blanket. It is
apparent from Special Agent Piwowar’s testimony that among the
items were multiple syringes, not just the syringe found in the
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handbag with Maki’s Social Security card. Moreover, the
evidence suggests that not all the items of clothing recovered
at the scene belonged to Maki. Namely, two pairs of shoes were
recovered from the scene in addition to general items such as a
hat and a belt. While Special Agent Tritt testified that one
pair of the shoes appeared to be women’s shoes, the second pair
was a larger plain white pair.
Viewing the totality of the evidence in the light most
favorable to the State, we hold the evidence was sufficient for
the jury to find that defendant had the capability and intent to
control the items that he was near and moving around. Thus, the
trial court did not err in denying defendant’s motion to dismiss
the possession-related charges.
Conspiracy Charge
Defendant’s final argument under the first issue on appeal
is that there was insufficient evidence of a conspiracy.
Specifically, defendant contends there was no direct evidence of
an agreement between him and Maki to traffic in methamphetamine
by manufacture and there was insufficient circumstantial
evidence of an agreement to support the charge. Defendant
asserts the conspiracy charge was supported only by suspicion
built on conjecture. Again, we disagree.
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“In order to prove conspiracy, the State need not prove an
express agreement; 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) (citing State v. Bell, 311 N.C.
131, 141, 316 S.E.2d 611, 617 (1984)). As this Court noted in
State v. Jenkins, 167 N.C. App. 696, 699-700, 606 S.E.2d 430,
432-33 (2005), “[a] conspiracy may be shown by circumstantial
evidence, or by a defendant's behavior. Conspiracy may also be
inferred from the conduct of the other parties to the
conspiracy.” Id. (citations omitted). Yet, “[w]hile conspiracy
can be proved by inferences and circumstantial evidence, it
‘cannot be established by a mere suspicion . . . .’” State v.
Benardello, 164 N.C. App. 708, 711, 596 S.E.2d 358, 360 (2004)
(quoting State v. Massey, 76 N.C. App. 660, 662, 334 S.E.2d 71,
72 (1985)).
Upon review of all the evidence in this case, we hold there
was sufficient evidence to infer an implied agreement between
defendant and Maki. It is undisputed that defendant was present
and aware that Maki was involved in the production of
methamphetamine. Moreover, as we already held, there is
sufficient evidence from which a reasonable inference can be
drawn that defendant was also involved in the manufacturing
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process. Where two subjects are involved together in the
manufacture of methamphetamine and the methamphetamine recovered
is enough to sustain trafficking charges, we hold the evidence
sufficient to infer an implied agreement between the subjects to
traffic in methamphetamine by manufacture and withstand a motion
to dismiss.
Considering the totality of the evidence in the light most
favorable to the State, we hold there was substantial evidence
supporting the manufacturing, possession, and conspiracy charges
against defendant, even in the absence of an acting in concert
instruction. As a result, we hold the trial court did not err
in denying defendant’s motion to dismiss.
Trafficking Charges
Based on the 73.6 grams of liquid that tested positive for
methamphetamine, defendant was charged and convicted of three
trafficking offenses. Now in the second issue on appeal,
defendant contends that, even if there is sufficient evidence he
was involved in the crimes, there is still insufficient evidence
of the amounts alleged in the indictment to sustain the
trafficking charges. Specifically, defendant argues the entire
weight of a mixture containing methamphetamine at an
intermediate stage in the manufacturing process cannot be used
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to support trafficking charges because the mixture is not
ingestible, is unstable, and is not ready for distribution.
Relying on State v. Willis, 61 N.C. App. 23, 300 S.E.2d 420
(1983) and State v. Perry, 316 N.C. 87, 340 S.E.2d 450 (1986),
as well as non-controlling federal cases, defendant contends it
is inconsistent with the intent of the trafficking statutes to
use the total weight of such mixture to support trafficking
charges.
“The purpose of the [trafficking statutes] is to prevent
trafficking in controlled substances.” Perry, 316 N.C. at 101,
340 S.E.2d at 459. With that in mind, in Willis and Perry, our
State’s appellate courts recognized that the tough punishment
scheme in the trafficking statutes was justified to deter large
scale distribution of drugs, regardless of the percentage of
controlled substance in the mixture. Willis, 61 N.C. App. at
42, 300 S.E.2d at 431, modified and aff’d, 309 N.C. 451, 306
S.E.2d 779 (1983); Perry, 316 N.C. at 101-02, 340 S.E.2d at 459.
While we are sympathetic to defendant’s argument that the
methamphetamine recovered in this case was not yet in a usable
form, we find the purpose of the trafficking statutes is still
served in the present case where defendant admitted the
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methamphetamine had already been formed in the liquid and it was
only a matter of extracting it from the mixture.
Moreover, the trafficking statute does not specify a
certain type of mixture. In State v. Conway, this Court
addressed whether, under a prior version of N.C. Gen. Stat. §
90-95(h)(3b), “the entire weight of a liquid containing a
detectable, but undetermined, amount of methamphetamine
establishes a [trafficking] violation . . . .” State v. Conway,
194 N.C. App. 73, 78, 669 S.E.2d 40, 44 (2008). Noting the
“statute [at that time was] silent on whether the weight of a
liquid mixture containing detectable, but undetermined, amounts
of methamphetamine is sufficient to meet the requirements set
forth within the statute to constitute ‘trafficking[,]’” id. at
79, 669 S.E.2d at 44, this Court undertook a statutory analysis
and determined that if the legislature intended to include the
weight of a mixture containing methamphetamine, it would have
done so as it did in other subsections of the trafficking
statutes. Id. at 82-85, 669 S.E.2d at 46-47. This Court then
held the total weight of the mixture containing methamphetamine
in Conway did not support the trafficking charges and reversed
the defendant’s trafficking convictions. Id. at 85, 669 S.E.2d
at 48.
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However, in 2009 the trafficking in methamphetamine statute
was amended to include the “any mixture” language that Conway
noted was omitted. N.C. Gen. Stat. § 90-95(h)(3b) now provides
“[a]ny person who sells, manufactures, delivers, transports, or
possesses 28 grams or more of methamphetamine or any mixture
containing such substance shall be guilty of a felony which
felony shall be known as ‘trafficking in methamphetamine[.]’”
N.C. Gen. Stat. § 90-95(h)(3b) (2013) (emphasis added). The
statute then sets forth different punishments based on the
amount of methamphetamine or mixture containing methamphetamine.
Where the statute provides that a defendant is guilty of
trafficking when he manufactures “any mixture containing
[methamphetamine]” meeting the minimum 28 gram weight
requirement, we hold the trial court did not err in using the
weight of the liquid containing methamphetamine in the present
case.
III. Conclusion
For the reasons discussed, we hold the defendant received a
fair trial free of error.
No error.
Judges ELMORE and DAVIS concur.