State v. Brooks ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-203
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Cleveland County
No. 08 CRS 774
ALFRED LEE BROOKS
Appeal by defendant by writ of certiorari from judgments
entered 19 April 2012 by Judge Timothy S. Kincaid in Cleveland
County Superior Court. Heard in the Court of Appeals 25 August
2014.
Attorney General Roy Cooper, by Assistant Attorney General
Michael T. Henry, for the State.
Jon W. Myers, for defendant-appellant.
CALABRIA, Judge.
Alfred Lee Brooks (“defendant”) appeals by writ of
certiorari from judgments entered upon jury verdicts finding him
guilty of possession with intent to sell or deliver cocaine
(“PWISD”) and sale of cocaine. We find no error.
On 10 December 2007, Randy Connor (“Detective Connor”), an
investigator in the vice narcotics unit of the Shelby Police
-2-
Department, met with a confidential informant (“Mr. West”) for
the purpose of arranging an undercover illegal narcotic
purchase. Detective Connor gave Mr. West twenty dollars, a
video recording system, and sent him to Palmer Street in search
of an individual known as “Cornbread.” Upon arriving at the
location, Mr. West learned that Cornbread was unavailable. Mr.
West was then approached by defendant, and Mr. West asked
defendant “was he straight, basically asking him did he have
anything.” Mr. West and defendant agreed to a transaction, and
defendant went across the street to his car. When defendant
returned, he handed Mr. West “two small [] rocks” of what
appeared to be crack cocaine. Mr. West handed defendant the
money Detective Connor had given him. Mr. West then brought the
substance to another detective and they were placed in an
evidence bag. Field tests were performed on the substance, and
the substance tested positive for cocaine. Defendant was
subsequently arrested and charged with PWISD and sale of
cocaine. At trial, defendant stipulated to the admission of a
State Bureau of Investigation (“SBI”) laboratory report which
identified the material obtained by Mr. West as .1 grams of
cocaine base. The jury returned verdicts finding defendant
guilty of PWISD and sale of cocaine. The trial court sentenced
-3-
defendant to consecutive terms of a minimum of ten months to a
maximum of twelve months for the PWISD offense and a minimum of
sixteen to a maximum of twenty months for the sale of cocaine
offense in the custody of the Division of Adult Correction. On
7 March 2013, this Court granted defendant’s petition for writ
of certiorari.
Defendant’s sole argument on appeal is that the trial court
erred by denying his motion to dismiss both charges for
insufficiency of the evidence. Specifically, defendant contends
that the State failed to prove that the substance Mr. West
obtained from defendant was a controlled substance. We
disagree.
“Upon a defendant’s motion to dismiss for insufficient
evidence, the question for the Court is whether there is
substantial evidence (1) of each essential element of the
offense charged . . . and (2) of defendant’s being the
perpetrator of such offense. If so, the motion is properly
denied.” State v. Cox, ___ N.C. ___, ___, 749 S.E.2d 271, 274
(2013) (alteration in original) (citation omitted). “The
evidence is to be considered in the light most favorable to the
State, and the State is entitled to . . . every reasonable
-4-
inference to be drawn therefrom.” Id. (alteration in original)
(citation omitted).
The elements of PWISD are “(1) possession of a substance;
(2) the substance must be a controlled substance; and (3) there
must be intent to sell or distribute the controlled substance.”
State v. Mack, 188 N.C. App. 365, 382, 656 S.E.2d 1, 13 (2008)
(citations omitted). “Similarly, [t]o prove sale and/or
delivery of a controlled substance, the State must show a
transfer of controlled substance by either sale or delivery, or
both.” Id. (citations omitted). Cocaine is a Schedule II
controlled substance. N.C. Gen. Stat. § 90-90 (1)(d) (2013).
In the instant case, defendant does not dispute that he was
the perpetrator. Therefore, this Court needs to determine
whether the State presented substantial evidence for both PWISD
and sale of cocaine that the substance defendant possessed and
sold was a controlled substance, namely, cocaine. See N.C. Gen.
Stat. § 90-95 (2013). To prove that the substance obtained from
defendant was cocaine, the State sought admission of the SBI’s
laboratory report (“SBI report”). Defendant stipulated to the
admission of the SBI report.
Defendant contends that his stipulation was limited to
admission of the SBI report without the necessary testimony from
-5-
a laboratory analyst, and that he did not stipulate to the
conclusions contained in the report. However, prior to
accepting defendant’s stipulation, the trial court clarified to
defendant what the stipulation entailed:
One of the elements that the State has
to prove for the offenses that you are
charged with is that the substance seized
was a controlled substance.
You can require the State to prove
that. That would mean that they have to
call an expert witness to prove those
issues. However, your attorney has
indicated that you – she is willing to
stipulate – stipulated to the lab report
coming in or that the substance is –
[Defense Counsel]: We stipulate to the lab
report coming in.
The Court: Okay. So that means that
evidence will be in front of the jury
without someone having to come in and
testify that the substance they tested was
whatever it was and this was their report
and all that; do you understand that?
Defendant responded that he understood, and agreed and
stipulated that this was acceptable. Because defendant
stipulated to the admission of the SBI report, he has failed to
preserve this issue for appellate review. See State v. Ward,
___ N.C. App. ___, ___, 742 S.E.2d 550, 554 (2013) (holding that
defendant failed to preserve issue for appellate review by
failing to object to a laboratory report and by stipulating to
-6-
facts included in the substance of the report); see N.C.R. App.
P. 10(a)(1) (2013).
Defendant also contends that the trial court erred in
admitting evidence of the field test conducted on the substance.
However, because the SBI report was “sufficient in itself to
identify the substance as cocaine,” we do not need to address
this argument. State v. Jones, __ N.C. App. __, __, 725 S.E.2d
910, 913 (SBI lab report was “sufficient in itself to identify
the substance as cocaine.”), appeal dismissed, review denied,
366 N.C. 231, 731 S.E.2d 421 (2012). Accordingly, we conclude
the trial court did not err by denying defendant’s motion to
dismiss.
No error.
Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).